It is still far too early to know precisely what effect the Jackson reforms relating to costs in personal injury cases will have on professional negligence claims. Given the extent of the changes they are undoubtedly going to spawn a number of claims against solicitors for not using the rules to best advantage.
But I would like to raise a different point, which is the extent to which qualified one-way costs shifting in personal injuries cases impacts on mitigation. This would arise, for example, where a claimant has missed the primary limitation period because of his solicitor’s negligence and sues the solicitor. The solicitor may well raise an argument that the Claimant should first mitigate his loss by suing the underlying tortfeasor, relying on Section 33 of the Limitation Act.
How may qualified one-way cost shifting alter this? Well, under the new regime if the Claimant sues the underlying tortfeasor he will be protected by qualified one-way costs shifting. This means that if the claim does not succeed he would not (in ordinary circumstances) have to pay the other side’s costs. The Claimant would no longer require ATE insurance to protect himself against adverse costs – and of course in the past getting ATE has been a barrier to some claimants bringing claims after the primary limitation period. This could well alter the reasonableness or otherwise of embarking on such litigation, particularly with an indemnity from the solicitor. What will the courts make of an argument along these lines? Watch this space.