Regan: might clinical negligence come back into scope of legal aid?
There is “no scintilla of doubt” that the Jackson reforms will be implemented but “twitchy solicitors” may play into the hands of civil servants by charging lower success fees – or even no success fees at all – as a result, a leading costs expert has said.
Addressing an Association of Costs Lawyers seminar in London, Professor Dominic Regan predicted that the only possible concession on the reforms – currently going through Parliament in the Legal Aid, Sentencing and Punishment of Offenders Bill – is bringing clinical negligence back within the scope of legal aid.
Removing it from scope is “totally unacceptable”, a position with which he said Lord Justice Jackson agrees.
“What’s intriguing is how solicitors will react to the end of recoverability,” he continued. Under the changes, solicitors will be able to take no more than 25% of the client’s damages as a success fee, and Professor Regan pointed out that “there is no obligation to take 25% – civil servants’ dream is that solicitors won’t. Will you get some firms doing [the work] for base costs only?”
He suggested that clients are so used to the idea of ‘no win, no fee’ and receiving 100% of their damages, and some firms are “so twitchy” about the impact of the changes, that they may charge no or a low success fee.
Professor Regan said some experts viewed qualified one-way costs shifting (QOWCS) as providing satellite litigation for the next decade. Under QOWCS, a losing personal injury claimant will only be liable to pay the defendant’s costs if they are conspicuously wealthy or have acted unreasonably. “How do you define an unreasonable claim?” he asked.
The academic added that it was not yet clear how QOWCS would be reconciled with part 36 offers. One answer could be for the court to decide that it was unreasonable to proceed after rejecting an offer that is not beaten at trial, meaning that the usual costs consequences flow.
In all the reforms – and particularly the introduction of costs management – he predicted “tremendous opportunities” for costs lawyers, a title which denotes members of the Association of Costs Lawyers (the Association of Law Costs Draftsmen as was).
Outlining the requirements of costs management, Professor Regan said: “I can only see costs lawyers doing this job.”
Very many competent law costs draftspersons are not members of the Association of the Costs Lawyers (typically because they consider that the benefits of membership are too meagre to justify the expenditure of time and money required). Otherwise, I like the article.