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Ken Clarke Jackson white paper - Insight and Opinion30 Mar 2011by Donald MacKenzie  Having broken his
political teeth as a Minister on Margaret Thatcher's notoriously
undemocratic cabinet, Ken Clarke will have learned, should he have
needed any persuading, that the way to get things done is via strong
leadership from a conviction politician. When you're clear about how you wish to proceed, a green paper consultation document is, perhaps, better understood as a statement of intent. If you look at the speed with which the 'Jackson' white paper has been drafted after the closure of the public consultation period, it's hard to see it in any other light. Certainly this is the view of the anti-Jackson lobby that has not been able to halt the Jackson proposal that they see as most damaging - the ending of recoverability from the defendant of the conditional fee agreement (CFA) costs of no win, no fee cases. From the Government's perspective, there is a need for haste to kerb the millions haemorrhaging from the NHS in the legal fees of litigation. While the car insurance industry has welcomed Justice Secretary Ken Clarke's reforms of civil litigation, they have called for him to implement the Jackson recommendation that referral fees be scrapped which is not part of his current white paper. To what extent does Ken Clarke's white paper implement the key Jackson recommendations? To answer this, we've listed Jackson's main recommendations as headings (in green) below, with our comments as to Mr Clarke's position on these. The costs system should be based on legal expenses that reflect the nature/complexity of the case. Mr Clarke states that a new test will be introduced to ensure that the overall costs are proportionate. He provided no detail on the nature of this test. Success fees and after the event insurance premiums should not be recoverable in no win, no fee cases. This has been accepted by Mr Clarke and is central to his reforms. General damages awards for personal injuries and other civil wrongs should be increased by 10%. To be implemented. Referral fees should be scrapped. Not currently proposed. Claimants should only make a small contribution to defendant costs if a claim is unsuccessful (as long as they have behaved reasonably). This approach, referred to as qualified one-way costs shifting, has been accepted. There should be fixed costs for "fast track" cases (with a claim up to £25,000). Clarke proposes a new consultation, Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System, that aims to increase the cap for claims processed via the electronic road traffic accident (RTA) claims portal system from the current £10,000 to perhaps as much as £50,000. Lawyers should be allowed to enter into Contingency Fee Agreements. This was also accepted by Mr Clarke, with the effect that the lawyer's success fee will now be drawn from the damages awarded, capped at 25% of that sum. This helps to meet the proportionality criterion. Thus, apart from the scrapping of referral fees, Mr Clarke has accepted all of the key Jackson proposals. Currently, car insurance companies pay 87p in legal fees for every £1 paid in damages for injury cases. By reducing the size of these legal fees, the cost of car insurance will be reduced. This is excellent news for motorists that have seen car insurance increase in price by a third in 2010, with further rises this year. Injury lawyers are concerned that these reforms will prevent access to justice for the more complex cases while numerous legal academics have weighed in to say that there is no evidence on which to determine the likely impact of these reforms, something that the Government accepted in its own impact analysis. For the hard-pressed motorist, these reforms can be welcomed but the injury lawyers are right to assert that access to justice is likely to be reduced. In theory, such a development would be unlawful as it contravenes the Humans Rights Act requirement that every citizen should have a right to access to justice. The debate will continue, especially when the detail of the white paper emerges. Our detailed review and analysis of the Jackson Report recommendations. comment... |
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