Academic report attacks "excessive and over-zealous" Jackson reforms

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By Legal Futures

17 January 2012

McIvor: insufficient evidence

The Jackson reforms are “excessive and over-zealous” in their impact on personal injury work, failing to achieve their core objective of promoting access to justice at proportionate cost, an academic study has concluded.

Dr Claire McIvor, a senior lecturer at Birmingham Law School, argued that by focusing solely on the task of achieving proportionate costs “from the narrow perspective” of relating them to the financial value of the claim, the judge’s main recommendations “blatantly prioritise the interests of defendants over the interests of claimants”.

She said the evidence in Lord Justice Jackson’s final report fails to justify this shift because it does not show that defendants are currently under-protected or that the behaviour of claimant solicitors is the cause of high costs.

Dr McIvor – who also contributed to an earlier damning academic reporton the reforms – explained: “To conclude such is not to deny that there may be problems with the existing costs system, nor that defendant interests might currently be under-protected. The point being made is si

mply that any programme of reform which impedes access to justice requires the strongest of justifications, and the Jackson report has fallen far short of providing such justification.”

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Noting that the judge himself says that 90% of all cases are concluded at proportionate cost, she concluded that at most his report showed that there is a problem with disproportionate costs in a small percentage of cases and that there is “probably some undesirable costs-increasing behaviour on both sides”.

Dr McIvor continued: “As such the most appropriate solution would appear to be better case management. Crucially, the evidence does not necessarily demonstrate that the primary source of the current high level of costs is the recoverability of success fees and after-the-event insurance premiums.”

She said the biggest concern, however, is that despite having been alerted to these problems “and despite having ascertained that the majority of stakeholders are opposed to the main Jackson recommendations, the government has decided to press ahead regardless with its plans for implementation”. The Legal Aid, Sentencing and Punishment of Offenders Bill had its third day of committee in the House of Lords yesterday.

Nigel Muers-Raby, chairman of the Consumer Justice Alliance, welcomed Dr McIvor’s report. He said: “These reforms are wrong in principle and unworkable in practice. Dr McIvor’s report confirms what the government has already been told on countless occasions: it simply hasn’t thought through these proposals in enough detail.”

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