New challenge to Jackson: defendant delay costs six times more than other delay

Courts: claimants win 90% of cases that reach trial after defendant delay

Defendant action is a factor in at least one in four of delayed civil cases, and costs six times more than other causes of delay, the leading legal costs academic has claimed.

Professor John Peysner of Lincoln Law School and a former chairman of the Civil Justice Council’s costs sub-committee, said the link between delay and excessive costs needs to be “explicitly considered” as part of any changes to the costs regime the government may make in implementing the Jackson report.

His analysis of several thousand cases indicated that defendant delay has an average daily cost of £57.83 compared to £8.49 for other (unspecified) causes of delay.

“While we would urge caution in quoting these figures as an average across the industry, unless it is possible to replicate this across a larger dataset, this at least provides an indication of the average higher costs of defendant delay,” Professor Peysner and fellow researchers Dr Angus Nurse and John Flynn wrote in a newly published report.

Their work also found that in those cases where defendant delay led to a trial, the claimant won in 90% or more of cases, “indicating that defendant delay is a factor in increased court fees and the time taken to resolve cases”.

Professor Peysner said further research is needed “into the causes of delay and defendant behaviour specifically to determine whether endemic practices within the insurance industry cause delay or whether insurers’ responses are determined by claimant behaviour, and to determine the key points at which delay occurs within the protocol”.

If successful, such research could identify whether changes to the handling of cases will reduce excessive and disproportionate costs, he said.

The academics were commissioned by National Accident Helpline to produce an independent report on defendant delay, and they worked with both the data contained in the Jackson report and data provided by NAH.

They said that while Lord Justice Jackson identified the failure to settle cases early as one factor in excessive and disproportionate costs, “we consider that there is a link between delay and excessive costs that needs to be explicitly considered in any changes to the costs regime given Jackson’s conclusions that the time taken to resolve cases has an impact on excessive and disproportionate costs, and our own analysis of delay as recorded by the NAH data.

“Jackson concluded, for example, that for every £1 for which the liability insurers paid out in damages, they paid out £1.80 in claimant costs. We have verified this figure in Jackson’s data but our analysis of the NAH Ltd data supplied as part of this research indicates that the amount of costs incurred is not only linked to the overall time taken to pursue a case to conclusion but also to the amount of defendant delay involved.”


    Readers Comments

  • Paul Graham says:

    As a PI lawyer on behalf of both Claimant and defendants for over 35 years I can say that John Pevsners belief for the reasons for the delay by Defendants is often being generated by the behaviour of claimant firms is correct, particularly some of the large Claimant firms who leave major PI cases to unqualified staff in the belief that telling them to stick to the script (i.e. what the next task is set by the case management system that firm are using) is written in tablets of stone.

    Jackson is a flawed report and the PI market will take a lot of fixing to put it back on a level playing field.

    The insurers are also making a lot of money out of Claimant PI. Many of them are selling the cases to the Claimant firms in the first place as well as providing ATE and LEI insurance to those same Claimants. The simple answer is to have a national Civil legal aid service for which a percentage of successful damages to a ceiling is charged. That funds the service, provided that in respect of unsuccessful cases a minimum payment of a fixed amount is made to the unsuccessful Claimant and the Defendant probably just disbursements and some small fixed fee.

    The successful cases will pay for the unsuccessful ones and there will be no drain on the state purse other than some pump priming if a private company will not back the scheme.

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