Legal blog: It was a mistake

So after four months of twiddling my thumbs, helping with childcare and trying to avoid builders’ rubble at home at last I am back at work. Some may say I must be mad but the sense of relief is enormous although I can’t tell you how strange it is after being involved in the same business for 16 years to suddenly be thrust into a completely unfamiliar environment, but I’ve been made to feel very welcome!

Would you believe that my very first day at work, 1st May, was the day of the FOIL Golf Day – some say start as you mean to go on, others who saw me play and indeed my score are more likely to say don’t give up the day job.

Well what a month I’ve had, a mixture of excitement, Preston North End sneaking into the play offs on the very last day as a result of a combination of results that not even the great Stato could have predicted – and intrigue with the Ministry of Justice Reforms “will they or won’t they be delayed”. So there I was, ploughing through papers in preparation for the first mediation on the Ministry of Justice Claims Process Review. Imagine my surprise when an e-mail arrived from the MOJ, not 24 hours before that meeting to say that the process would in fact be delayed and implementation would not now take place until April 2010. Not a complete surprise but the timing was hardly motivating. Nevertheless I jumped on the train and stopped off en route, to a meeting with the Association of District Judges. The plot thickened, one of the judges announced that he had heard that the whole process had been mothballed pending the Jackson Review, surely not!

The whole thing then descended into farce whilst I was actually sat, mid-mediation, another e-mail arrived, again from the Ministry of Justice, this time saying that the previous letter announcing the delay was a mistake. Those members of the Ministry of Justice sat in the mediation denied that it was a mistake and scurried off to seek clarification. Out of a sense of intrigue I replied to the e-mail requesting whether they were sure that this was in fact correct to which I received a response saying that when they sent the e-mail it was indeed correct which frankly told me nothing.

Since then we have received a second confirmatory letter saying that the implementation will be delayed but will definitely be delivered in April 2010, which is of course immediately before the time when there be must a general election. Now I’ve always thought that people who engaged in conspiracy theories have got a screw loose but on this occasion I can’t help but be concerned that this process could be heading for the long grass something which I don’t think will please anybody who has put a lot of time and effort into making it work.

There is also another part of me that suspects some jockeying for position. Lord Justice Jackson has of course now released his preliminary report, which to be honest raises more questions than it does suggest answers. There was one particular paragraph that caught my eye within the personal injury section which suggested that the reviews on costs ought to be dovetailed to avoid confusion for practitioners. This is something that I’ve called poor before but the impression that I get is that Lord Justice Jackson would like to see people wait for him to deliver his review despite the fact that he accepts in his opening section that he does not have a government mandate for his work. Moreover if we do wait until January 2010 then implementation in April 2010 will be impossible!

I was also intrigued by his comments in relation to the possibility of raising the small claims limit and abolishing ATE insurance with a system of one-way costs shifting. Both of these conflict with stated government policy as reaffirmed by the Ministry of Justice – see my April Blog.

Later this month we have a second mediation, and some may say the one we’ve all been waiting for, the attempt to decide upon costs associated with the new process. My only hope is that people realise that what we are trying to develop is a commoditised style process for low value claims, not a system predicated by legal complexity. If there was ever an example of where we needed to utilise the much over used phrase of Tesco style law, this is it. If the parties involved in the mediation don’t agree on this I do wonder how much progress we will make.

Anthony Hughes is president of the Forum of Insurance Lawyers (FOIL) and chief executive at Horwich Farrelly.