Jackson: CJC tasked with moving forward QOCS, part 36 reform and proportionality test
Government plans to reduce the amount of litigation in the county courts by introducing mandatory pre-action directions will undermine the constitutional principle of access to the courts, the Civil Justice Council (CJC) has warned.
The news comes as the CJC’s role in implementing the Jackson reforms has also been revealed.
The CJC was objecting to a staged process for money claims under £100,000, with fixed costs at each stage, outlined in the Ministry of Justice’s (MoJ) consultation, Solving disputes in the county court.
The stated aim is to put the management of a dispute into the hands of those involved “and clearly signpost options to resolve the issues without the need to come to court” through the use of pre-action directions that take parties through various stages, only the last of which is a trial.
In its response, the CJC “strongly” recommended that the proposal was not implemented on several grounds, at the heart of which was that “the introduction of compulsory pre-action directions, the aim of which is to divert claims from the courts will, as a matter of principle and of fact, undermine the constitutional framework and the constitutional settlement as it will place a fetter on access to the courts”.
Instead it said more use of alternative dispute resolution and active judicial case management would help solve the problem identified.
The CJC also warned that the combination of these proposals, the Jackson reforms and legal aid changes will have “a substantial effect on the numbers and circumstances of litigants in person”, and criticised the lack of consideration given to this in the consultation paper.
The CJC recently set up a high-powered working party under the chairmanship of Robin Knowles QC to consider how to improve access to justice for litigants in person.
The consultation response was cautious about the plans to extend the road traffic accident claims portal to higher-value claims and to other areas of personal injury (PI), cautioning that the portal was still in its infancy despite the promising signs so far. PI claims worth up to £25,000 or even £50,000 can be far more complex than those worth up to £10,000, it pointed out.
It is believed the government wants an extended claims process to start in October 2012, but the CJC said: “It must however be recognised, on the basis of experience of the time required to develop the RTA PI scheme, that a variation or extension of the scheme would take a substantial amount of time to develop and introduce.”
Meanwhile, another CJC working group has been set up to work out how to implement parts of Lord Justice Jackson’s proposals. Its chair is CJC member Alistair Kinley, who is head of policy development and a non-lawyer partner at defendant insurance firm Berrymans Lace Mawer.
Its remit is to look at qualified one-way costs shifting (QOCS), and particularly “atypical cases and behavioural aspects”; the introduction of an additional sanction/reward under part 36; and the detail of the new proportionality test, including the content of a practice direction and examples of when the test should not be applied.
The working party will develop and prepare papers setting out “realistic optional solutions in each of the three areas and advice on the pros and cons of each option by the end of September 2011”. A workshop of key stakeholders – sounding similar to the CJC’s old ‘big tent’ – will then be convened in October to “provide feedback on MoJ/CJC developed proposals for secondary legislation on QOCS, part 36, proportionality and possibly other areas”.
Bearing in mind how inefficient the Courts Service has become, I would welcome a system which enables litigants to move cases along without having to wait for the Court to do something like issuing directions. However, we need to retain the threat of a looming trial date to make insurers pull their fingers out and negotiate. I think we should return to a system of automatic directions (sans automatic strike out of course).
If there are to be pre issue directions, there must be legislation to make it clear that they are part of the “proceedings” so that legal expense insurers cannot continue to prevent customers having the freedom to choose their own solicitors. And again, we need the threat of issuing proceedings to make insurers come to the table.
QOCS is a big worry – there will be litigants who simply can’t afford to take the risk even though they have a genuine claim and a real need for compensation. Recoverability is right in PI claims but it should not be allowed in libel actions where the rich can afford to litigate and do not need compensation, just a proper apology.