Legal blog: Policy on the hoof

I make no apology for returning once again to the civil justice reforms, as there have been one or two significant developments since I last wrote on this topic.

We have finally seen the enactment of the LASPO (Legal Aid, Sentencing and Punishment of Offenders) Bill, and the government has issued its consultation on the fixed fees in relation to the RTA portal and its potential extension to both employer liability and public liability claims. Both were expected. What is of particular interest, however, is the recent announcement that the government intends to carry out further consultations on increasing the small claims track limit and to explore the feasibility of introducing independent medical panels.

FOIL has always supported the Jackson reforms, arguing that they should be introduced as an interlocking package. FOIL also considers that there can be no argument against reducing the fixed fees relating to the RTA portal. Such reforms will help streamline the civil justice system and promote access to justice. 

It is, therefore, a little difficult to understand why the government has now decided to consult further on the small claims track limit. One has to wonder how this fits in with the current consultation on the portal, especially after Lord Justice Jackson made it clear he did not believe the time was right to review the limit, while in its consultation on Solving Disputes in the County Courts (issued in March of last year), the government agreed with him. 

Policy on the hoof

Our concern is not with the thrust of the consultation so much as that it smacks of government developing policy on the hoof, and so muddying the waters. The danger is that more consultations increase the risk of the government being distracted and losing sight of the overall objectives of the reforms. The fact that the government failed to include a review of fixed fees and hourly rates outside the Portal within either the original consultation or the anticipated consultation heightens our anxiety that it is taking a piecemeal, rather than a holistic, approach to civil justice costs. 

It is instructive to note that both the Civil Justice Council and Lord Justice Jackson recommended the setting up of a Costs Council as a means of ensuring a more joined-up strategy towards legal costs. It is hard to disagree with the sentiments of the master of the rolls in his recent keynote address to the Association of Costs Lawyers annual conference: “One big push every 10 years or so to meet a crisis is neither a proper nor a sensible way to deal with the problem of litigation costs.”

The last thing anyone wants in the early days of the LASPO Act coming into force is a series of costs wars and judicial reviews because reforms have been rushed in without being properly thought through. Such a situation would not benefit claimants, defendants or insurers, and would put in jeopardy the real prize, which is access to justice for all in a more streamlined and efficient civil justice system.

Independent medical panels

In relation to the proposal to introduce independent medical panels - primarily as a response to the “whiplash epidemic” - FOIL welcomes such a review. 

There is no doubt that if the government takes a sensible line in relation to civil justice costs as indicated here, then this will in itself take some of the fat out of the system. It is also likely to reduce personal injury claims incidence in road traffic accident cases, which currently is simply too high. 

Nevertheless, an additional review of the way in which medical evidence is acquired in these cases is a sensible development, not least because whiplash claims have always presented difficulty in view of the lack of any clear pathology on examination.

Don Clarke is president of Forum of Insurance Lawyers (FOIL)