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The MoJ set out their current reform agenda

4 April 2014

Next Monday we will be 13 months away from the next General Election which will happen on 7 May 2015, and so the opportunity for further process reform led by Government is beginning to close. Speaking at the Westminster Legal Policy Forum this week, Robert Wright, the MoJ’s Head of Civil Litigation Funding and Costs, the senior civil servant who has led the process of implementing Jackson through LASPO, gave an insight as to Government priorities for further change in its remaining time in office. It will of course be appreciated that key changes in claims and litigation handling will usually be Government led.

The current priorities

Much has been achieved, but much more is still to do, said Mr Wright. But there are signs that the MoJ are struggling to find the resource to take forward everything on its agenda. Reference was made to the pressure caused by the on-going process of reform, and the need to prioritise.

Whiplash reform

So what are the priorities for the MoJ? The biggest issue for the Secretary of State Chris Grayling remains whiplash reform. Indeed he sees it as an urgent problem to crack. The Government recognises that there is a degree of consensus around what needs to be done on independent medical panels, which it says it is seeking to harness. It wants to achieve the revisions needed to the CPR before the summer recess on 18 July.

Small claims track limit

On the related issue of a possible increase to the small claims track limit for injury claims, might this still happen, Mr Wright was asked? The same answer as given by the MoJ on previous occasions was repeated, that they had decided against an increase in their consultation response last October, but that an increase has not been ruled out, and that the decision remains under review.

But it is clear that it is the fixing of the medical costs in this type of claim that is the priority. The implication from Mr Wright was that if that can be achieved, then the Government may see that as a sufficient reform in this area, so that when it is set against the broader reforms which have been achieved, no SCT limit increase will be proposed again before the General Election. If it’s left till after the conclusion of the changes on independent medical panels, then it will be too late to increase the limit in this parliament anyway.

Taking stock and reviewing

As to the broader LASPO changes, we were entering a phase of taking stock of what had been achieved, said Mr Wright. 2013 with its spikes in claims and litigation numbers had not been a normal year. The focus was now on Mitchell. The only consequence of reform of civil litigation was more civil litigation, to test the new law, a battle hardened Mr Wright accepted. He saw the main issues now being around adapting to the changes such as in the case of Mitchell, rather than the reforms themselves.

The civil servants in the MoJ are though starting to work on the parameters of their prosed review of the impacts of the Jackson and portal changes which is due between 2016 and 2018. They are considering how best to conduct their review, and said they want to engage with both claimant and defendant stakeholders who were able to provide data on how the reforms have worked in practice. Insurers are already collecting this type of MI, and may be able to deploy it in future discussions with Government looking to advance the reform agenda.

QOCS extensions?

On QOCS, there is something of a campaign at present to extend the principle of QOCS to more than injury claims following the recent Civil Justice Council conference on the reforms. The MoJ are not intending to proceed on this as quickly as some would like. The introduction of QOCS into defamation cases on a means tested basis is next on the MoJ list. After that, there is to be a review of QOCS before a decision is made whether to extend it to other types of claim appearing on what Mr Wright described as a long list, such as claims against the police. So in the meantime those claimants will continue to be exposed to the risk of adverse costs orders and will require ATE cover.

More fixed costs?

The new fixed costs do of course only apply to injury claims inside the portal, or to injury claims which start off inside the portal and drop out, and even then not to disease claims. The Government recognise as Jackson did the advantage of fixing costs across claims classes where the value is less than £25k. But this is clearly not a priority. They will look favourably on this proposed reform, but further work in this area will have to take its place among other priorities, and there is not the resource in the MoJ to tackle it currently.

Changes to the DBA Regulations?

While the MoJ are now willing to look at amending the DBA Regulations to make them more user friendly, it is quite clear that again this is not seen as a priority either. Mr Wright saw DBAs as a niche product, and one that was unlikely to be used in standard injury claims anyway. He noted that until recently, claimants had not been coming to them requesting reform. The message seemed to be - so what’s the fuss now?

It’s probably a fair point, because as far as claims which insurers have to deal with are concerned, where the claimant lawyer can recover costs, he is unlikely to prefer a DBA over a CFA. At least that is unless all of the current disadvantages of DBAs which claimant lawyers see to exist are dealt with, including removing the indemnity principle from DBAs which those lawyers think is needed to avoid them being challenged by insurers.

There was no indication from Mr Wright that even if the DRA Regulations are changed to allow hybrid agreements under which lawyers are paid something if the case is unsuccessful, that all of the changes required by claimants will be made. The Government would carry out a statutory consultation first if change was planned. So DBAs are unlikely to become popular any time soon. But in reality there is no great need for them now, though claimant lawyers would see an urgent need for reform of DBAs if the threat of an increase in the SCT limit looked near.

In summary

Independent medical panels with fixed medical report costs are seen as key by MoJ ministers now. It looks like it may be difficult to get them to start any more major initiatives in the time remaining before next May.

Contact

For further information, please contact Simon Denyer, Strategic Legal Development Partner, on 0161 604 1551.

By Simon Denyer

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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