The new Lord Chancellor, Liz Truss, published what she terms as a “historic” paper, “Transforming Our Justice System”. The paper prepared by Truss and the Lord Chief Justice is a vision statement for the future of the court system in England and Wales. It encompasses criminal, family and civil cases and sweeping changes are promised to make the legal system more accessible to everyone.
As an injury claims lawyer, I read the paper with trepidation and it seems with good reason. The undertone of the reforms to the civil courts is one of “proportionality” and modernisation. The latter I have no issue with. We must move with the times and any action taken to reduce delays and promote simplicity should be welcomed. However, I write this with caution, as I imagine successful modernisation will require significant funding from the government which in these times is unlikely to be forthcoming.
In terms of proportionality, Truss states that their aim is that losing parties should not be hit with disproportionately high legal costs. To achieve this she plans to extend fixed recoverable costs much more widely. I can only assume this means a plan to introduce Lord Justice Jackson”s recommendation of fixed costs in all civil cases up to a value of £250,000.
We have seen this all before and not long ago. As recently as April 2013 Jackson”s reforms brought about fixed costs for civil cases with a value of £1,000 to £25,000, introduced a new rule on proportionality and cost budgeting on issued cases where the costs are not already fixed.
I ask why proportionality is yet again the focus of further reform. We have a system in place where costs in issued cases are already fixed or budgeted by the judiciary to ensure that they are proportionate. We have a new rule on proportionality which means that legal costs must be proportionate to the damages or remedy sought. Also, since long before the April 2013 reforms, we have had a system where the losing party can challenge the level of legal costs through detailed assessment. It is not the case that they just have to pay.
In my view there is no need for further reform and the government have not given the 2013 reforms time to work. The further implementation of fixed costs is the Conservative government making further concessions to the insurance industry and big business as it will be them that benefit the most from these changes. I do not believe access to justice has anything to do with the planned reforms it just about saving insurers and companies money. If there was a commitment in allowing access to justice then surely the paper would propose a reduction in the level of court fees which were increased by over 200% in April 2014.
I am obviously biased but this is because inevitably it will be the injured people for whom I act for that will suffer from these reforms. Cases with a value of £250,000 often involve serious and life changing injuries with complex liability and valuation issues. These issues will sometimes require expert evidence which can be costly but absolutely necessary for an injured person to prove their claim. The level of fixed costs payable will not allow solicitors to do the best for their clients. It may well result in injured people struggling to find legal assistance or having to contribute more financially to their legal costs to ensure they can present the best possible case.
There is now a consultation on the paper until 27 October 2016 but my view is that the die is already cast. Worrying times ahead.