An ambitious bid to build a coalition of claimant personal injury interests to offer the government a compromise on the Jackson report has failed, Legal Futures can reveal.
Discussions were held on an alternative to ending the recoverability of success fees and after-the-event (ATE) insurance premiums that was said to be “safer, better and less damaging to access to justice”.
Among those who met to discuss the coalition were the Law Society, the Association of Personal Injury Lawyers, the Trades Union Congress, the Motor Accident Solicitors Society (MASS), the Personal Injuries Bar Association (PIBA, which represents both claimant and defendant barristers), the Access to Justice Action Group (AJAG), and several major personal injury law firms.
However, Legal Futures understands that it was the decisions of the Law Society and MASS not to join the coalition that led to the idea being dropped, as it was deemed less effective without a united front. A paper wa put together for submission to the Ministry of Justice (MoJ) following the initial discussions but there was not unanimous agreement on it.
The proposal was to adopt PIBA’s call for fixed and staged success fees, half of which would be recoverable from the defendant and half from the claimant, and capped at 25% of the total of damages.
On ATE, the preferred model was that of AJAG, which included no recoverability if liability is admitted during the protocol period, and further stages up to capping post-proceedings recoverability at 50% of the compulsory defendant cost budget as approved by the court at the allocation questionnaire and listing questionnaire stages (thus tying premiums to actual costs, rather than damages).
Former Labour MP Andrew Dismore, the one-time Russell Jones & Walker partner who is co-ordinating AJAG’s campaign, said: “My view has always been that we should try to speak with one voice on behalf of claimants, to get the best outcome we can for them from the Jackson process. Indeed the original idea behind AJAG was to try to identify as common a position as possible. This inevitably requires a degree of compromise, and AJAG was certainly prepared to take on board other ideas to achieve a common view.
“I was pleased that there was little difference over AJAG’s proposals on ATE and none which I do not think could have been accommodated, but it was the problem of success fees that became the sticking point and prevented a general consensus in the end. At the meeting, I thought we had made considerable progress and that there was a general understanding of where we should head, but clearly that was a somewhat over-optimistic assessment of how things have turned out.”
A Law Society spokeswoman said: “There was a single exploratory meeting with the other claimant groups at which a possible compromise policy was tabled. Representatives of the Law Society attended the meeting but at no stage suggested that it would be part of any coalition or that it would necessarily be able to support the policy.
“We understand that no consensus was reached among those attending the meeting. We are keen to stay in touch with all groups affected by the Jackson proposal.”
MASS declined to comment on the contents of private meetings.
It is understood that the MoJ is considering the possible unintended consequences of the reforms, such as: creating an underclass of disabled and disenfranchised claimants who either cannot afford to make claims or cannot find legal representation; a reduction in Compensation Recovery Unit recoupment and court fees; and consequential increase in payments of state benefits. There are also worries about the risk of satellite litigation.
Speaking last week at an event organised by the National Pro Bono Centre, justice minister Jonathan Djanogly revealed that the MoJ’s response to Jackson and legal aid green papers will be published shortly after Easter. Legal Futures believes that a bill should follow before the summer recess in mid-July and possibly earlier.
Mr Djanogly indicated to the event, held at the offices of City law firm Allen & Overy primarily to discuss the future of legal aid, that the MoJ is considering retaining legal aid in clinical negligence to fund an initial medical report that would determine the claim’s viability.
He also said that plans to extend the year-old road traffic accident claims process to other areas of personal injury, including low-value clinical negligence, would leave only big cases affected by the Jackson reforms.