The Jackson Review may not have won universal approval, but there is something in it for all sides
Lord justice Rupert Jackson’s final report is not just a “clear and comprehensive” review of the problems caused by litigation costs, to quote the Master of the Rolls, Lord Neuberger. Its strength lies in the fact that the recommendations are based on extensive data from a variety of sources; the case for change is therefore objectively very difficult to challenge.
Thus, when Lord Jackson says that conditional fee agreements and after-the-event (ATE) insurance premiums are the single biggest cause of disproportionate costs, we have to accept the validity of this. There is equally a strong theme of public interest in the report, however: that claimants with valid claims and defendants with valid defences should be able to use the court system without facing disproportionate costs.
As a result, the package of reforms in personal injury (PI) cases and the separate package of reforms in clinical negligence cases each have elements that are firmly pro-claimant. Lord Jackson believes that the majority of claimants will be better off, even after paying a success fee out of their damages, as a result of his plans to increase damages for pain and suffering. Importantly, claimants will again have an interest in the costs incurred on their behalf, which in time will promote better control of how cases are run.
Lawyers would still be able to enter into ATE insurance with their clients, although it will not be used as widely as before. There will be opportunities for other products, and in other litigation fields where litigants still want to share or transfer their risk, perhaps in conjunction with third-party funding. Greater certainty around the costs of fast-track cases once fixed costs are introduced, plus the removal of the claimant’s liability for the defendant’s costs, may drive greater availability of before-the-event (BTE) legal expenses insurance. Lord Jackson is keen to promote greater use of BTE for a variety of reasons, having seen the system in Germany in particular.
The fixed-costs proposals are important, not just for costs control but also as an early indication of what can be achieved. The report sets a date of October 2010 by which the fixed costs could be brought into force in all types of PI case, in advance of any changes to recoverability.
The interlinked reforms have to be viewed in the round. There is something for all sides, with the public interest strongly favoured. That interest includes delivering savings to the public purse, which should be attractive to all political parties and should help support calls for early reform in the next parliament. This will not stop vested interests arguing for their corner, but the public interest behind the report is compelling.
To quote the Master of the Rolls again: “The time for discussion and debate is over: it is now time for action.” There is a strong sense of judicial intent behind the report, and the immediate and full endorsement by the senior judiciary. It may well be that the judges themselves will start pressing for change if there is no immediate support from the Ministry of Justice.
Lord Jackson has agreed to play a leading role in ensuring that these proposals are implemented. Given his track record in producing both the preliminary report and the final report on time, and in such detail, no one should doubt his ability to deliver.
A final compliment from the Master of the Rolls: the report is “imaginative and realistic in its proposals”. Not only realistic, but achievable. IT
