Solicitors will not abandon large swathes of personal injury claimants if they are paid less than now, Lord Justice Jackson has predicted.
In a sharp retort to a much-publicised report which slated his recommendations for reform of the civil costs system, Sir Rupert again attacked “middlemen who add no value to the process”, such as claims management companies and after-the-event insurers.
The paper – produced for his appearance at a meeting last week of the All-Party Parliamentary Group for Legal and Constitutional Affairs – indicates that the judge took exception to the nature of the criticism in the report by 11 academics, which was published in February.
Professor Ken Oliphant, who oversaw the report, also spoke at the meeting.
Sir Rupert described as “flawed” the assumption in the report that lawyers will reject many cases which are currently contested – meaning claimants will be worse off – if they are paid less than now as a result of his reforms.
The chapter was written by Cambridge academic David Howarth, who was the Liberal Democrats’ shadow justice secretary before retiring from politics at the last election.
The judge explained: “There is currently far too much money swilling around in the personal injuries system and the beneficiaries are not the claimants, but usually the referrers and (when no referral fee is paid) the lawyers…
“Even if no success fees were payable (and I am not advocating this), solicitors would still do much PI work. There would simply be less surplus to share out amongst claims management companies, ATE insurers, trade unions etc.”
The judge said there is no difficulty in predicting what will happen if his recommendations are adopted, as they broadly reinstate the regime which existed between 1995 and 2000.
In what might be seen as a swipe at the Association of Personal Injury Lawyers – which Sir Rupert described as “now the strongest critics” of his report – he quoted its evidence to Lord Woolf in 1996, which indicated support for how conditional fee agreements were working at the time.
Lord Justice Jackson rejected the academics’ idea that a claimant retaining all of his damages is a “fundamental principle of civil justice”, saying this “recently discovered” principle “makes no sense”.
He said: “A regime in which one party – win or lose – pays nothing in costs, while the other party is exposed to substantially increased costs liability is hopelessly lopsided.”
The academics’ report focused on personal injury, and the judge said they “should, perhaps, be willing to take passing notice of the effect of CFAs in non-personal injury cases. That effect can be devastating”.
Sir Rupert said the “universally hostile tone of every paragraph” was “somewhat unusual in any genuinely impartial or fair academic report”.
He took strong issue with the suggestion that he had presented a “misleading and partial account” of the problems and systematically preferred the evidence of defendant insurers.
Describing the suggestion as “unworthy of the working group”, the judge said the academics had themselves given a “misleading impression” of his preliminary and final report by focusing attention on pro-defendant passages, when both sides were given “equal space and attention”.