Young – the danger may lay in the rhetoric, not the report

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15 October 2010

Personal injury: Young report is unlikely to turn the legal world upside down

Posted by Neil Rose, Editor, Legal Futures

Who would be a claimant personal injury (PI) lawyer right now? First the Jackson report, now the Young review, soon (if you also do a bit of clinical negligence) legal aid cuts and in less than a year alternative business structures, many of which will be targeting what is seen as one of the most easily commoditisable areas of practice. 

As I blogged last week (see here), these issues are all linked and it is vital for the Ministry of Justice (MoJ) to ensure that the various strands of reform work with, rather than against, each other.

So what to make of Young? First of all, let us briefly bask in the irony that he is only stoking the perception of a compensation culture (and he accepts that this is what it is) against which he rails so vehemently. 

The only real surprise to me is the suggestion of a streamlined claims process for low-value clinical negligence cases, like the one that has been operating for the last six months in low-value road traffic accident (RTA) cases. But actually the recommendations on lawyers and their costs are pretty thin on detail, perhaps reflecting the short timeframe in which the report has been completed. For example, the peer does not like PI adverts, and has written to various regulators about them, but without any concrete suggestion of where he would like to see the reviews he wants them to conduct end up. 

His position on referral fees is contradictory. He clearly doesn’t like them and supports Jackson, who recommended banning referral fees. But in the very next sentence he “very much” welcomes the Legal Services Board’s (LSB) investigation into and consultation on referral fees. The LSB’s view, lest we forget, is that the case to ban referral fees is not made out (see story). 

However, as John Spencer, chairman of the Motor Accident Solicitors Society, pointed out at Wednesday’s Claims Standards Council/Legal Futures conference, the LSB has given itself a get-out clause by saying that its review was based on the regulatory issues involved and that it was not offering a view “on any wider public policy arguments”. 

In so far as Lord Young’s wish to extend the RTA claims process is concerned, I can foresee the MoJ saying that it is on the same page, although will be turning it at a more measured pace. Many people expected the  MoJ to push ahead with Jackson’s call for fixed fees across the fast-track, with the claims process the obvious vehicle for doing so, but I have it on very good authority that the reason this will not be in the upcoming Jackson consultation is that the MoJ wants more time to assess the RTA scheme. But the odds are that it will come.

I first got wind of the recommendations last night while at a reception packed with the great and the good of the costs world. The uniform reaction of claimant lawyers I told was derision – they think he is playing to the crowd and does not understand the PI market. The reality is that Young is pushing in a direction costs reform is already moving, a direction causing dismay to those same claimant lawyers. From their perspective, therefore, the greater damage in Young may simply be from his rhetoric and the lawyer-bashing free-for-all he has unleashed.


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