MoJ Extension & LJ Jackson’s Civil Costs Proposals Simon Johnson 14 May 2012

MoJ – Key Proposals Eligible RTA claims - £10k > £25k EL and PL claims to be added to portal

MoJ – Key Proposals Is the current scheme a success? Reduced cost:- Stage 1 - £400 Stage 2 -£800 Stage 3 - £500 Web portal a magnet for criminal activity? Are EL/PL claims suitable for the scheme? Disease/construction/product claims too?

MoJ – Key Proposals Adjusting to Change Portal stability How long to investigate properly? Clinical negligence? No increase to fast-track limit Fast track – fixed recoverable costs Timescale

MoJ – Key Proposals Helping policyholders adjust To ensure immediate notification Review KPIs for investigations Dedicated portal team? Impact of increased claims Increased operational costs

In the beginning there was…

Meet the new Costs Avengers

Claimant Costs Schedule: Fast-Track

How did we get to this? Lord Woolf’s Reforms Two key aims:- Reduce delay – a success Reduce cost – sadly, no

How did we get to this? Escalation of costs driven by Access to Justice Act 1999

How did we get to this?

Key Proposals Success Fees/ATE premia – irrecoverable Success fees payable by client

Key Proposals Success fees capped at of general damages

Key Proposals Awards of general damages for PSLA to be increased by

Key Proposals Referral fees abolished

Key Proposals Fixed fees for fast-track personal injury cases Increased use of summary assessment Damages–Based Agreements (Contingency Fees)

Key Proposals

QOCS Qualified one-way costs Shifting C will not pay D’s costs if unsuccessful D will pay C’s costs if successful

QOCS Interaction of QOCS with P36 CPR?

QOCS Interaction of QOCS with P36 CPR? Remember C will lose 25% of general damages in the success fee

QOCS Interaction of QOCS with P36 CPR? Remember C will lose 25% of general damages in the success fee BUT

QOCS Interaction of QOCS with P36 CPR? Remember C will lose 25% of general damages in the success fee BUT Be assisted by:-

QOCS Interaction of QOCS with P36 CPR? Remember C will lose 25% of general damages in the success fee BUT Be assisted by:- a) 10% uplift on general damages +

QOCS Interaction of QOCS with P36 CPR? Remember C will lose 25% of general damages in the success fee BUT Be assisted by:- a) 10% uplift on general damages + b) Uplift of 10% on total damages if P36 offer effective (capped at £75,000)

Can D ever recover their costs? C’s costs liability constrained by QOCS

Can D ever recover their costs? C’s costs liability constrained by QOCS But if C recovers less than D’s P36 offer:-

Can D ever recover their costs? C’s costs liability constrained by QOCS But if C recovers less than D’s P36 offer:- 1) D pays C pre-offer costs

Can D ever recover their costs? C’s costs liability constrained by QOCS But if C recovers less than D’s P36 offer:- 1) D pays C pre-offer costs 2) C pays D post-offer costs

Can D ever recover their costs? C’s costs liability constrained by QOCS But if C recovers less than D’s P36 offer:- 1) D pays C pre-offer costs 2) C pays D post-offer costs Caveat

Can D ever recover their costs? C only ever pay D costs with regard to all the circumstances:- i) C’s financial resources ii) Parties’ conduct

What conduct will make C lose costs protection?

Back to Naomi…

MGN Ltd v Campbell [2011] ECHR held that success fee breached MGN’s right to freedom of expression Back to Naomi…

MGN Ltd v Campbell [2011] ECHR give LJ Jackson a shot in the arm. Access to justice (Art 6) must be balanced with freedom of speech (Art 10) Back to Naomi…

The Legal Aid, Sentencing and Punishment of Offenders Bill

Provisions not in the Bill (but which will be introduced)

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions not in the Bill (but which will be introduced) QOCS

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions not in the Bill (but which will be introduced) QOCS New proportionality Test

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions not in the Bill (but which will be introduced) QOCS New proportionality Test Increase in general damages by 10%

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions not in the Bill (but which will be introduced) QOCS New proportionality Test Increase in general damages by 10% Reversal of Carver (but see amendment to CPR 36.14)

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions in the Bill:-

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions in the Bill:- Abolition of CFA recovery from D

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions in the Bill:- Abolition of CFA recovery from D Abolition of ATE recovery from D (save for cost of expert in clinical negligence)

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions in the Bill:- Abolition of CFA recovery from D Abolition of ATE recovery from D (save for cost of expert in clinical negligence) Damages-Based Agreements in most civil litigation

The Legal Aid, Sentencing and Punishment of Offenders Bill Provisions in the Bill:- Abolition of CFA recovery from D Abolition of ATE recovery from D (save for cost of expert in clinical negligence) Damages-Based Agreements in most civil litigation Payment of additional amounts if C matches or beats D’s offer to settle

Will we see an end to this?

Will this be the net effect?

Assault

Assaults – Violence between Staff

Weddall v Barchester [2012] Request was a pretext for violence unconnected with his role. Assailant not acting in the course of his employment.

Assaults – Violence between Staff Wallbank v Fox Designs [2012] The employer should bear vicarious liability. Spontaneous force in response to an instruction given to an employee.

Mesothelioma Public Liability Insurer on cover 10 years before disease develops should respond.

Mesothelioma – Employers’ Liability