Will Jackson’s fixed costs proposals deliver access to justice?25 September 2017
A Dispute Resolution analysis from Thompsons Solicitors’ head of personal injury strategy, Gerard Stilliard
Lord Justice Jackson has published his review of FRC, making a series of recommendations to government for consideration, including the introduction of an FRC grid for all fast track cases and a new ‘intermediate’ track for certain claims of up to £100,000. A report examines ways in which the recovery of costs can be made more proportionate so as to widen access to justice.
Gerard Stilliard, head of personal injury strategy at Thompsons Solicitors in London, gives his reaction to Lord Justice Jackson’s report on fixed recoverable costs (FRC) and considers how it will affect his practice.
1. What are the findings of Lord Justice Jackson’s report on FRC?
Lord Justice Jackson’s report on the expansion of FRC has rowed back somewhat from previous suggestions that FRC should be applied to all claims up to a value of £250,000. Instead, he recommends that FRC be expanded from accident claims to include almost all fast-track cases (i.e. those worth up to £25,000).
He has further recommended that FRC be applied to a new ‘intermediate’ track of claims worth up to £100,000.
2. What are the fundamental changes proposed in the report?
The single most significant change for Thompsons Solicitors as a personal injury law firm is that, for that band of cases between £25,000 and £100,000 and for disease cases worth between £1,000 and £100,000, we will no longer be paid for the work we actually do on our clients’ cases but rather in accordance with a fixed matrix.
3. In your view, are the proposals to be welcomed?
Given the pressure Jackson LJ was under from the government and insurance industry to extend FRC to all claims up to £250,000, the exclusion of clinical negligence, asbestos-related claims and the ceiling of £100,000 is (to some extent) welcome news.
Nevertheless, we are disappointed that, despite the weight of evidence that costs budgeting has been a move in the right direction, it has not been given a chance to prove itself and is being terminated for the majority of cases within just a couple of years of its introduction.
We shall now have to go away and consider in detail the extent to which the proposed figures match the costs we have previously incurred and therefore how we can best ensure we can continue to deliver the quality of service our injured clients deserve.
Clearly, there will now be a debate over the way in which cases are assigned to ‘bands’ within the intermediate track and the outcome of that debate will have a significant impact on the way in which such cases can be run.
The real risk here—as with any fixed costs regime—is, on the one hand, deep-pocketed defendants manipulating the system by raising issues which their opponents can’t afford to fight and, on the other, unscrupulous claimant lawyers who game the system by doing the minimum of work to scoop the maximum costs at the expense of the injured and vulnerable.
4. What should practitioners take note of?
Jackson LJ has proposed a tri-yearly cycle of indexation in line with the Service Producer Price Index and that to our mind is crucial. So far, we have seen no such increase to FRC in the fast track, which were rigged low in the first place seven years ago.
What must not be allowed to happen is Jackson’s figures to be skewed by the government and insurance industry in favour of the defendant. This is what happened in February 2012 when Jackson’s fixed cost matrix figures for cases valued between £1,000 and £25,000 were slashed at a private meeting between insurers and the government at 10 Downing Street, and was subsequently imposed on the profession.
5. Any other points of interest worth mentioning here?
The report assumes (p 133) that the government’s so-called whiplash reforms will come into play as previously envisaged. We suggest that is far from a done deal. After being criticised for their attitude to access to justice in R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)  UKSC 51 so recently, does the government really want to give in (yet again) to insurance company lobbying at a time when the insurers are making huge profits and they are being exposed as doing their level best to think only of themselves and those profits. Any increase in the small claims limit would go against Jackson LJ’s previous recommendation that the only increase required to the small claims limit was to reflect inflation since 1999. His proposal was that ‘the present limit stays at £1,000 until such time as inflation warrants an increase to £1,500’—and that hasn’t yet happened.
Gerard Stilliard has over 15 years’ experience of winning personal injury cases. His responsibilities include developing policy on personal injury litigation strategy, working on campaign initiatives and ensuring best practice across Thompsons’ personal injury work. He works closely with trade unions, industry groups and the teams of dedicated lawyers in Thompsons’ offices who specialise in handling accident and disease cases.
Interviewed by Kate Beaumont of Lexis Nexis.
This article was first published on Lexis®PSL
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