APIL to float last-ditch Jackson compromise

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By Legal Futures

9 February 2012


Injury claims: everyone recognises that QOCS won’t work, says Deboray Evans

The Association of Personal Injury Lawyers (APIL) will next week launch a final attempt to challenge the Jackson reforms by setting out a new negotiating position that drops outright opposition to the changes.

However, while the Law Society said the proposals deserve “serious consideration”, another claimant lobbying group attacked APIL’s move, while defendant lawyers rebuffed any suggestion of compromise over the Legal Aid, Sentencing and Punishment of Offenders Bill.

APIL is currently consulting with its 5,000 members over a package that would see fixed recoverable success fees – ranging from zero if a binding admission is made in the protocol period to 50% at trial – non-recoverable after-the-event (ATE) insurance premiums, the bid to introduce qualified one-way costs-shifting (QOCS) abandoned, and legal aid retained for clinical negligence work.

The APIL executive committee will finalise its proposals next week before taking them to the Ministry of Justice and defendant insurers and lawyers.

Chief executive Deborah Evans said APIL had always planned to reflect on what happened during the committee stage of the bill’s progress through the House of Lords before setting out “a sensible alternative” to float at the report stage, which is scheduled for early March.

While still opposed to the reforms in principle, Ms Evans said APIL was taking a “realistic” view of the prospects of securing wholesale changes. “I hope [the proposals] are sufficiently aligned with the government’s intentions to be given serious consideration.”

Making ATE unrecoverable rather than success fees meant claimants would only suffer “one hit, not two”, while creating a competitive ATE market where prices will go down and so reducing the portion of a claimant’s damages that will be eaten up by the premium. She sa

id the ATE market is currently a “false” one because recoverability means there is no pressure on prices.

The government seems entrenched in its current position, but Ms Evans said APIL’s ideas offered a way out of QOCS. “Everyone recognises that QOCS doesn’t work,” she said. “There has been a deafening silence from the government on [how it will operate].”

Law Society chief executive Des Hudson said: “The government appears determined to force through changes. Blunt opposition seems unlikely to halt the reforms so the Law Society has been considering pragmatic alternatives. For several months the society has been working behind the scenes with other stakeholders to discuss possible ways forward.

“We remain opposed in principle to the government’s changes but alternative proposals from APIL deserve serious consideration. We look forward to serious discussions with government and the insurance industry.”

However, Nigel Muers-Raby, chairman of the anti-Jackson lobbying group the Consumer Justice Alliance, expressed “grave concerns” at both the content and the timing of the compromise.

He argued that it would leave the injured victim “in a worse position than do the Jackson proposals”, while “its circulation and use at a time when the Lords are showing such strong opposition to the bill is little short of catastrophic”.

In an open letter to Ms Evans, he said the alliance particularly opposed the attempt to reach a common position with the Association of British Insurers and the Forum of Insurance Lawyers (FOIL).

In any case, FOIL chief executive Laurence Besemer told Legal Futures: “There is no need for a Plan B – Plan A will deliver both a sustainable and balanced civil justice system and the government should stick the course on these reforms.

“There are no divisions in the defendant camp and our position is clear – that the Jackson reforms, provided that they are brought in as a package and at the same time, as Lord Justice Jackson intended, will deliver access to justice for those that want it and bring proportionality and balance back into the system, to the benefit of wider society. There is simply no credible evidence of risk to innocent victims.”

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4 Responses to “APIL to float last-ditch Jackson compromise”

  1. APIL start getting organised against Jackson despite prompting, very late in the day (good job as the Americans say) !

    Their considered and ‘even handed’ view is that better the client gets landed with an ATE premium that has protected the adverse costs position, than have to pay solicitors the uplift on own costs which quite frankly has a tad less justification……………. Well at least we all know which side our bread is buttered,– transparant self interest or what!!
    To be fair to APIL they are at least showing signs of realism which has not been how many ATE Insurers have approached the problem. Either way for all claimant stakeholders doing something is better than nothing but sadly as Frasier from Dad’s Army put’s it………..We are doomed…. all doomed!

  2. Anthony on February 9th, 2012 at 12:36 pm
  3. Surely now is the time for all the claimant groups to put aside posturing and come together to agree on one coherent, alternative proposition. If the nation’s claimant lawyers cannot make a convincing case for their own survival to persude the public, and therefore the government, that there is a better way to provide access to justice, at an acceptable cost, them they should hang their heads in shame and acknowledge that we are indeed all doomed.

  4. Malcolm Roberts on February 10th, 2012 at 8:08 am
  5. Well the time for the claimant Groups to all come together and speak as one voice is not now Malcolm it was about two years ago.
    Had chance, muffed it!!
    The problem is that the claimant groups still can’t agree basics even now, so by contrast to the one big booming voice of the Insurance lobby, the claimants are just a fractured group of self-interested, (hence my earlier point about APIL and success fees in preference to ATE recovery, though come to think of it I could just as easily have added ATE Insurers who still think £250’ish RTA premiums even with QOWCS pre lit are worth fighting for) – little ‘mumblers’ that the Government can hardly hear let alone take any notice of.
    Perhaps my Dad’s Army saying was too pessemistic to be fair. There will always be opportunities when any Government just bowls along and fails to consider the law of unintended consequences, so things are not all bad despite APIL/MASS/LEIG et al not really ‘getting it’ and not booming out one clear unified message right from the start.

  6. Anthony on February 10th, 2012 at 11:15 am
  7. The claimant group work together – you must be joking!!

    I wrote to major players in the claimant personal injury field well over a year ago saying that without a united ‘anti Jackson’ voice and clear precise messages we would get nowhere. The only organisations that failed to respond were APIL and MASS which says it all really and this latest display of self interest from APIL simply plods down the same inevitable path of total and outright victory to the insurance lobby.

  8. Chris on February 10th, 2012 at 5:05 pm

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