We set out details of the ongoing lobby activity and a summary of the next steps Kennedys will be taking.
The February edition of Liability Brief was dedicated to the story behind Kennedys’ Cost Reform Group. The Group was formed to enable us to provide a comprehensive response to the Ministry of Justice’s consultation on reform of civil litigation funding and costs (based on Lord Justice Jackson’s proposals).
The discussion surrounding the proposals has retained a level of turbulence. Whilst most camps seem to agree on the need for reform, the details of the mechanism to bring about change continue to be fiercely debated.
In the February edition of Liability Brief we summarised the responses of two organisations opposing the reforms, the Access to Justice Action Group and the Bar Council. They are not alone and we highlight below two further examples of the tactics being employed to influence the shape of the debate.
A report has been published by a panel of law academics (sponsored by Thompsons) which suggests that Jackson’s proposals to reform costs are misleading and “inconsistent with a fundamental principle of civil justice– the principle of full compensation for wrongful injury”.
In addition, a group calling itself “The Corporate Responsibility (CORE) Coalition” wrote to justice minister, Jonathan Djanogly, shortly after the consultation closed to set out its views on the proposals. The group is largely made up of non-governmental organisations and civil society groups including Amnesty International, ActionAid, Friends of the Earth and Tax Research UK. The group expressed concerns that the MoJ’s proposals do not take account of the implications on victims of harm committed by UK multi-national corporations (MNCs) abroad. CORE suggests that proposals on the non-recoverability of success fees and basic costs should be amended to clarify that they do not apply in respect of litigation against MNCs.
Although CORE’s grievance does not directly affect our case, this is a different angle on the “access to justice” argument put forward by the claimant lawyer community and is worth keeping an eye on. Given the make-up of the group its arguments may resonate well with policymakers.
The March issue of the political magazine, “Total Politics”, features an eight-page special report on litigation costs and legal aid. This follows a roundtable breakfast event held by the magazine and DAS Legal (providers of legal expenses insurance). The event was attended by a number of MPs, including Jonathan Djanogly and Andy Slaughter (shadow justice minister); together with Linda Lee (Law Society president), Paul Asplin (DAS CEO), Alison McClure (head of the personal injury team at Blake Lapthorn) and Peter Walsh (chief executive at the charity Action Against Medical Accidents).
Djanogly made the point that access to justice for defendants has often been lacking, suggesting “to have a system where the claimant cannot lose is surely not right”. However, it appears that his views were contested by others.
Clinical negligence was a hotly debated topic. Djanogly came up against Linda Lee, who suggested that Jackson’s recommendations would “prevent the vast majority bringing claims, including the most difficult cases, which are probably the most deserving”.
There was division over the issue of whether Britain possesses a compensation culture. Djanogly suggested that “most people do feel that we are heading towards a compensation culture in this country”. Andy Slaughter was completely at odds with this and claimed that Jackson suppressed problems rather than solved them.
Some questioned the need for change at all. Paul Asplin warned that (qualified) one-way costs shifting could lead to an increase in frivolous claims “as defendants default to settlement rather than paying out larger sums to defend themselves in court.”
The report highlights the political element that appears to be developing. The significance of this is likely to be revealed in full when those proposals requiring primary legislation are put before Parliament.
We think it is vital to counter the lobby efforts, such as those outlined above, with our own, to ensure the Government hears both sides of the argument. Therefore, we intend to arrange a Parliamentary breakfast event for the end of April. As with the other discussions that are taking place, this will allow us to raise any new points the MoJ should consider. As importantly, this will also demonstrate to the Government that there is a coalition of interests that support the implementation of Jackson’s recommendations.
We hope to be able to invite officials from the Department of Health (DoH). At the outset of the consultation process, our enquiries suggested that health officials had a lack of awareness about Jackson’s recommendations and their implications. Given the current debate (and, in particular, that surrounding the NHS), we suspect that the DoH may now relish the opportunity to engage in conversation with us and hear our support for the reforms.