The Jackson proposals to abolish recoverability are fundamentally inconsistent with justice, skewed towards defendants, and likely to hurt serious injury victims the most, an influential group of law academics has said.
In a hard-hitting report by a working group of 11 academics, headed by Ken Oliphant, professor of tort law at Bristol University, Lord Justice Jackson’s blueprint is attacked for presenting “a misleading and partial account of the problem… [which] systematically prefers the evidence of the defence lobby” over that favouring injury victims.
Significantly, the academic report, On a slippery slope – a response to the Jackson Report, rejects a key plank underpinning the Jackson reforms: that excessive costs in the present system can be attributed largely to the use of conditional fee agreements (CFAs).
It says: “The evidence presented [by Jackson] fails to substantiate the claim that the primary source of the problem of high costs is rent-seeking by claimant lawyers acting under CFAs.” Rent-seeking is a term applied to those who extract uncompensated value from others without making any contribution to productivity.
The group’s report will be music to the ears of the increasingly vocal opponents of the Jackson reforms. The reforms include scrapping recoverability of success fees and after-the-event insurance premiums in CFAs, along with a 10% increase in general damages to cover this, as well as one-way costs shifting.
It comes ahead of the consultation on the government’s green paper on implementing Jackson, closing on Monday. The consultation proposes various “refinements”, including to recoverability, which Lord Justice Jackson has rejected.
The working group’s report includes chapters by law academics at King’s College, London, and the universities of Cambridge, Cardiff and Birmingham – the Cambridge author is David Howarth, who was the Liberal Democrats’ shadow justice secretary until retiring at the last election. It was supported, financially and logistically, by national law firm Thompsons, although the academics make it clear that Thompsons had no editorial control.
The report makes two recommendations:
- That the government reject the core Jackson proposal to take the lawyer’s success fee out of the injured person’s damages; and
- That the government should appoint a commission of inquiry to gather and assess evidence about the costs of civil litigation. Insurers would provide “unimpeded access” to anonymised case files.
The working group says it set out to submit the Jackson report to “critical analysis” by neutral academics who would “stand up for both the interests of claimants and the general public interest rather than the narrow commercial interests of insurers, personal injury firms, or others with a direct financial stake”.
Its main conclusions were that:
- The Jackson proposals are “inconsistent” with “the fundamental principle of civil justice” of full compensation for wrongful injury because they entail “raiding” damages. This would be a “slippery slope towards ever greater inroads into compensation to which injured persons are legally entitled”;
- The “evidential base for such radical reform is entirely inadequate”. The Jackson report “presents a misleading and partial account of the problems” by treating opinion as fact and “systematically prefers the evidence of the defence lobby”;
- The proposals would “have an adverse impact upon access to justice because they favour the financial interests of defendants over the interests of claimants”;
- Limits on what lawyers can charge will “reduce the availability of legal services” to injury victims;
- The proposals will “benefit defendants at the expense of injured persons”, with seriously injured persons “likely to be the biggest losers”;
- Health and safety will suffer because of the “reduced legal sanction for dangerous practices”;
- The Jackson report “uses a sledgehammer to crack a nut” and pays too little attention to alternative, proportionate costs-saving measures, such as “a mandatory before-the-event component of motor insurance”; and
- If adopted, the reforms would make “major changes in the civil litigation system by a process of questionable legitimacy”, because Lord Justice Jackson had determined the issues “on the basis of evidence very largely supplied by one party to a long-running and polarized debate – namely, the defence lobby, consisting largely of liability insurers – with insufficient independent verification”.
At last, some sense on Jackson! Our response to the green paper sets out how the heart of the problem is that judicial indifference, inexperience and lack of resources have done for the civil procedure rules, permitting non-compliance with process and unfettered conduct and cost.
Shrouding the Jackson reforms in the flag of “access to justice” doesn’t disguise the fact that the proposals judge the value of this concept solely by means of a financial balance between costs and damages. You simply can’t categorise personal injury claims by reference to an equality of damages and complexity, and thereby proportionality of costs.
There is also no mention in the report of an acceptance of an injured claimant’s entitlement to an ultimate sense of justice from the process. Saldy, the inference is that the claimant’s experience of the legal process does not matter, as long as the algebra of costs/damages balances.