Proposals to implement Lord Justice Jackson’s recommendations on civil costs could lead to “acute” problems for litigants.
In a detailed response to the government’s consultation submitted last month, the Bar Council called for the reforms to be “clearly targeted” and to address threats to access to justice.
Under the Jackson reforms, successful claimants in conditional fee (no win, no fee) cases will pay their solicitor’s success fee and after-the-event (ATE) insurance premium out of their damages. The damages payable will be slightly increased to take account of this. Unsuccessful claimants will either pay nothing or pay their ATE premium.
Successful defendants will pay their own costs. Unsuccessful defendants will pay their own costs and increased amount of damages.
The Bar Council response states: “We see very little logic or sense in this result. The wrongdoer profits by the change at the expense of those whose rights have been vindicated.”
It refutes the government’s claim that the reforms will lead to greater competition and lower success fees, as instead “the changes are likely to lead to riskier cases... not being taken on at all”.
The paper criticises the government’s impact assessments as “entirely inadequate” since they provide no figures, and the Bar Council calls for a “full and proper” impact assessment of the effect on the disabled, particularly those disabled as a result of clinical negligence.
While litigation costs might be reduced “to some very limited extent” by the proposals, the price is that those costs would be “imposed on the wrong people”.
The Bar Council believes that the proposals would have a “significant impact in reducing access to justice”.
Christopher Hancock QC, chair of the Commercial Bar Association, who led the Bar Council’s response, said: “We accept that methods to reduce costs in the litigation process which are disproportionate must be found.
“We also broadly welcome the proposals for large disputes, where there are no issues regarding funding or access to justice. However, we are concerned that in many cases these proposals will lead to acute problems for litigants seeking access to justice.
“The combination of cuts to legal aid and plans which will impact severely on funding of smaller cases must not be allowed to exclude whole categories of parties from the ability to seek legal redress”.