NATIONAL ACCIDENT HELPLINE RESPONSE TO THE GOVERNMENT S PROPOSALS FOR REFORM OF CIVIL LITIGATION FUNDING AND COSTS IN ENGLAND AND WALES

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1 NATIONAL ACCIDENT HELPLINE RESPONSE TO THE GOVERNMENT S PROPOSALS FOR REFORM OF CIVIL LITIGATION FUNDING AND COSTS IN ENGLAND AND WALES INTRODUCTION TO NATIONAL ACCIDENT HELPLINE National Accident Helpline (NAH) is the UK s leading free advisory service for people who have suffered an injury as a result of an accident. We help these people seek redress to aid their recovery, through our national solicitor network. National Accident Helpline is authorised by the Ministry of Justice in respect of regulated claims management activities and is a registered company, incorporated in the UK. NAH was formed in 1993, in advance of both the introduction of conditional fee arrangements and the Access to Justice Act. We were formed by a group of solicitors who saw the advantages of pooling resources and advertising through a national brand NAH to help people frightened of approaching solicitors directly to obtain advice and, where appropriate, pursue their rights to claim for personal injuries suffered by them. NAH is made up of a network of 112 specialist solicitor firms, our panel members, from across the country and is highly regarded across the industry. We have panel firms in England, Scotland, Wales and Northern Ireland. Our panel members pool resources to advertise as a gateway for thousands of personal injury victims who are seeking an entry point into the legal system. NAH business model and how we work The NAH model is significantly different to arrangements that operate in other areas of the personal injury market and that involve referral fees. The NAH model is a pooled marketing model, rather than a referral model. Indeed, this distinction was recognised when NAH was established in 1993 at a time when referral fees were not permitted in the legal system. The Law Society recognised that the NAH model did not involve referral fees and that our pooled marketing arrangements do not constitute a referral fee arrangement. During 2010 NAH received around 195,000 enquiries from consumers who are injured in accidents and who want advice and help on what to do. A large percentage of our enquiries come from people who are less well off. 42% of the consumers we help have a combined annual family income of less than 20,000 and more than 20% have been refused credit in the past. Our call centre staff are legally trained. They take the initial enquiries and filter out spurious and weak claims and then pass the enquiry to one of our panel members who have a geographic or specialism link to the consumer. The centralised NAH call centre filters out around 130,000 of those enquiries (those unlikely to have a legitimate claim to pursue) and refers around 60,000-65,000 people with their consent to one of NAH s specialist personal injury panel member solicitors. The call centre ensures that the consumer is made fully aware of the way in which NAH works with our panel solicitors. 1

2 THE PRINCIPLES OF JUSTICE IN PERSONAL INJURY CASES In this response, NAH will be focussing specifically on key issues for consumers and victims of personal injury cases; Conditional Fee Arrangements (s.2.1), After-The-Event insurance (s.2.2), Part 36 offers ( 2.4),Qualified One-Way Cost shifting (s.2.5), Alternative Recommendations (2.7) and Proportionality (2.8). We are therefore only answering the questions about which we have strong views and recommendations. Our arguments are all based around nine principles of justice in personal injury and clinical negligence cases, which we believe are commonly accepted by stakeholders and indeed expected by consumers. These principles, listed below, are fundamental in order to ensure a fair and just system is in place. It is our view that any changes proposed for reform of civil litigation funding and costs should not contravene any of these principles. We hope that the Ministry of Justice will be mindful of these principles in all of its considerations in this consultation and the overall policy-making process. THE NINE PRINCIPLES OF JUSTICE IN PERSONAL INJURY CASES 1. Accident victims deserve the right to seek redress for injuries caused to them through the negligence of another party, regardless of their financial means 2. Financially vulnerable claimants should not be deterred from making a legitimate claim on the grounds of any potential cost, whether known or unknown at the start of the claims process 3. Successful claimants should be entitled to the entirety of any damages received, in order to help them move on with their lives following their injury and provide full restitution for the damage caused 4. Claimants should be entitled to the same high standards of service and legal representation from all types of organisations, solicitors and bodies representing accident victims 5. Defendants in personal injury cases should be able to dispute claims that they believe are fraudulent or without legal merit 6. Successful defendants in personal injury cases should not have to pay any claimant costs and should recover their own legal costs 7. The application of justice in personal injury cases involving public sector defendants should not place overly-punitive requirements on any party, regardless of whether they are an individual, private organisation or public sector body 8. Public bodies who contribute to the rehabilitation of the accident victim, such as the NHS or Department of Work and Pensions, should be recompensed for costs incurred by the party found responsible for the accident 9. The application of justice in personal injury cases should not reward unnecessary delays, overburden the court service, or impinge on the rights of claimants or defendants to bring or defend claims 2

3 NEW EVIDENCE ON THE CAUSE OF EXCESSIVE COSTS IN PERSONAL INJURY LITIGATION Before responding to specific questions, we wish to address a broad, and we believe inaccurate, theme that runs through the Jackson recommendations. Both the consultation, and Lord Justice Jackson s recommendations, originate from the basis that the costs of civil litigation are too high. The proposals set out by Jackson, and in this consultation, are based on the premise that costs have been driven up by claimants and the behaviour of claimant solicitors. In order to test that premise, NAH commissioned an independent report by Professor John Peysner of Lincoln Law School, who is a renowned expert in this field and a leading contributor to government policy-making around civil litigation costs. The report Excessive and Disproportionate Costs in Litigation was published in February 2011 and clearly demonstrates that a major contributor to costs in civil litigation is, in fact, the action of defendants and their insurers or solicitors. Peysner s findings, which concentrated on personal injury and clinical negligence, demonstrate the following key points: Defendant action is a factor in one in four of delayed cases. Defendant delay is six times more expensive than other forms of delay. Defendant delay is often a tactic to deter claimants pursuing cases they think can t win, as demonstrated by evidence that claimants win 90% of cases where they are forced to issue proceedings. This new evidence severely undermines the basis under which the Jackson recommendations were proposed. At the very least, we believe that the Ministry of Justice must undertake further research in this area before formulating significant changes to the regulatory regime governing civil litigation costs. Further evidence provided by Allianz Legal Protection covering over 100,000 policies demonstrates that defendants fail to make an early admission of liability in 67% of cases that they eventually settle or lose at trial. The Allianz policy provides a very significant discount to defendants when an early admission of liability (made within 6 months policy inception) is provided. Defendants failure to admit liability in strong cases that eventually succeed increased the cost of this set of ATE premiums by an average of 647. Our response to the specific sections and questions, set out below, should be read in tandem with the statement that NAH believes that the very premise of these proposals is flawed, as clearly demonstrated by Professor Peysner s report. The report itself is appended to this response, in full, at Annex 1. 3

4 RESPONSE TO QUESTIONS Section 2.1: Conditional Fee Arrangements and Success Fees Conditional Fee Arrangements (CFAs) exist in order to provide access to justice for those who cannot afford to pursue litigation and who are not eligible for public funding. Their aim should always be to put successful claimants back into the position they would have been in, had they not sustained the injury in question. In this section, we demonstrate why NAH is opposed to the proposals outlined in section 2.1, structured by six main objections: i. Focussing on the root of the problem ii. The restitution requirement iii. No need to alter the level of success fees iv. The need for robust success fees in broader access to justice v. Ensuring access to justice for all with a legitimate claim vi. Implications of other policy changes on success fees i. Focusing on the root of the problem Principle 9 As above, claimant solicitor costs are highly dependent on defendant behaviour. In the adversarial legal system practiced in England and Wales, solicitor s costs inevitably rise if defendants are behaving unreasonably or are causing claims to be delayed as set out in Professor Peysner s report. These proposals are a license for insurers to make litigation uneconomic for claimants by using obstructive tactics, not settling cases and defending the indefensible. The proposals will create a perverse set of incentives for defendants and will allow them to starve claimants out via their conduct in contravention of Principle 9. We wholly oppose proposals that are based on such a flawed premise. ii. The restitution requirement Principle 3 It is right that CFAs adhere to the principle that the negligent party should be responsible for ensuring that an accident victim is not left financially worse-off as a result of an injury sustained through no fault of their own. In these cases, it is right that the negligent party repays monies relating to medical costs, loss of earnings and expenses incurred, as well as damages in respect of pain, suffering and loss of amenity. NAH believes that an accident victim needs and deserves every penny of this compensation and that it should be paid in accordance with the well established polluter pays principle. NAH opposes any proposals that would force accident victims to pay solicitor fees out of the compensation awarded. The result will be a reduction in access to justice for tens of thousands of injured people who will feel too apprehensive to claim due to uncertainty over their potential liability to pay legal fees and disbursements. Those who do take claims forward will receive less compensation than they would do as part of the present system. Lord Justice Jackson s proposal that a 10% increase in general damages would suffice in rectifying this is woefully inadequate when one notes that the Law Commission advocated an increase of 50% in general damages over ten years ago. 4

5 Thompson s Solicitors have conducted an analysis of 10,949 accident at work and 572 industrial disease claims and their findings are demonstrative of the huge damage these proposals will cause to good access to justice. The Thompson s data is appended in Annex 2. It is evident from the Thompson s data and data compiled by law firm Stewarts LLP 1 that certain categories of claimant will be affected more than others by abolition of recoverability of success fees. It is without question that the most seriously injured claimants will see the largest deductions from their compensation. Stewarts sample of high value cases concluded between 2007 and 2009 demonstrates that on average a badly injured claimant will be 47,132 worse off. It is also evident that those with the benefit of BTE insurance (typically more wealthy claimants) will be less affected by the proposals than those without BTE insurance who are usually less well off. It is clear that a person injured in an accident at work, pursuing a public liability claim or as a result of clinical negligence is far more likely to suffer a significant deduction from their damages than a claimant injured in a road accident. The data clearly demonstrates that most claimants injured in accidents at work or victims of industrial disease will be financially worse off under these proposals, contravening Principle 3 set out above. iii. No need to alter the level of success fees Principle 7 Radical reform of success fees is not necessary. The purpose of the recoverability of success fees is to enable good access to justice and to ensure that the claimant s ability to gain redress is not reduced in any way by the legal process. Despite frequent recent references from the Ministry of Justice to disproportionate success fees of up to 100%, success fees at this level are very much the exception rather than the rule: CRU figures for 2009/10 show that 757,186 of the 861,325 personal injury and clinical negligence claims registered were employer s liability or road traffic accidents claims. Fixed success fees have applied since October 2003 in RTA and October 2004 in employer s liability cases. Success fees are therefore fixed in 88% of personal injury cases. NAH analysed a sample of 315 successful personal injury cases referred to our panel solicitors in November 2006 where success fees were recovered. The average success fee recovered was 25% and a success fee in excess of 50% was only recovered in 8% of cases. The average success fee recovered in claims arising from slips and trips (often highway authority claims) was 40%. This is a modest success fee bearing in mind the very high failure rate of these cases and the fact that it is almost impossible for the solicitor to have an accurate view of prospects of success at the outset. A very high percentage of these cases are abandoned following disclosure by the defendant, usually because there is a statutory defence or a defence based on cleaning and inspection records. This data in full is appended to this response in Annex 3. NAH accepts that in individual cases, success fees will occasionally be set at the wrong level, for example in situations where what may appear to be a difficult case is met by an early admission of liability. Conversely, and more frequently, a case which appears straight forward is met with a denial 1 See Lord Justice Jackson s Review of Civil Litigation Costs: Final Report: A response by Stewarts Law 5

6 of liability or a failure to respond by the defendant in accordance with the protocol. This failure by defendants is significant: NAH analysed 134,000 Benchmark ATE policies paid between 2005 and The policy provides for a discounted premium to be paid if the defendant makes an admission of liability within 6 months of the policies inception. The protocol allows 3 months and 3 weeks for an admission. Despite there being a very significant discount for early admissions, defendants or their insurers failed to admit liability within 6 months on 75% of all non-rta cases and 68% of RTA cases they eventually settled or lost at trial. The contribution defendant delay makes to excessive costs is more fully described in Professor Peynser s report. There is no evidence to support the argument that a competitive market will develop based around success fees. The reality is that the vast majority of consumers are simply not qualified to compare solicitors based on the level of success fees they charge. The United States personal injury market is a perfect example of this, where a contingency fee system has not resulted in a market optimised by competition related to fee levels. We strongly urge the Government to base its views of success fees on evidence not supposition, and thus reject any proposals to abolish the recoverability of success fees. The evidence clearly supports that success fees are fixed at the correct level in the vast majority of cases and we reject any proposals to amend the levels of recoverable success fee in personal injury cases. iv. The need for robust success fees in broader access to justice Principle 9 The strength of the current success fee model is that, over the long-term, the limited disparities even out to create a system whereby solicitors are able to fund the vital investigative and background work that goes in to cases that do not proceed following the evidence gathering stage. The success fee also funds the significant costs written off by solicitors in cases that are withdrawn post issue of proceedings (often following exchange of witness evidence, exports report or disclosure), and those claims which are lost at trial. Lord Justice Jackson states in his provisional report and subsequent response to the green paper: The whole CFA regime has been a disaster... Many solicitors filter out risky cases and take on safe ones with, nevertheless, attractive success fees. Many solicitors have made substantial profits out of the CFA regime, at the expense of the man in the street. This assertion ignores the fact the success fees are fixed in the majority of cases and is not supported by any evidence. The assertion is also not correct. It should also be noted that success fees were fixed based on an empirical analysis of data by two leading academics, Fenn and Rickman. 2 One NAH panel firm assessed success fees and the time written off across cases over two financial years. The results clearly demonstrated that the success fees recovered were broadly met by the investigation time written off. (Results are shown in Annex 4). In fact they had written off slightly more time than they had recovered in success fees. This is just one example demonstrating that Jackson is wrong in his suggestion that lawyers cherry pick cases and are making vast amounts of money on success fees. 2 Fenn & Rickman Calculating success fees for employers liability accident claims / report to CJC May

7 The requirement to retain recoverability of success fees as a cornerstone of good access to justice is unquestionable. NAH fully supports that concept of the insurance principle which applies to success fees. NAH believes that the current success fee model is cost neutral and is critical in providing good access to justice, particularly for individuals with anything but the most straightforward claims. v. Ensuring access to justice for all with a legitimate claim Principles 1 and 3 The proposals on success fees cause greatest detriment to those worst off and those with the most serious injuries, contravening Principles 1 and 3. An analysis of the Thompson s data (outlined above) demonstrates that a large proportion of these successful claims would be wholly uneconomic to pursue under the proposals. Tens of thousands of people with good claims who very much need the compensation they are entitled to under English Law will be denied access to justice as their claims will become uneconomic. It is also clear that the proposals create a perverse incentive for insurers to drag claims out, defend the indefensible and force injured people to accept negligible offers of settlement. vi. Implications of other policy changes on success fees Principles 1 and 2 It is interesting to note that, as the Government is also driving forward reform to legal aid, the Minister of Justice recently stated: Anyone who has a valid case can hire a lawyer on a no no-win, no-fee arrangement. We believe that legal aid funded by the taxpayer is therefore an unnecessary alternative form of funding for these cases. 3 With the removal of legal aid, access to no win no fee arrangements has never been so important to claimants. The proposals in section 2.1 would prevent no win no fee models from operating in their current form, meaning thousands of potential claimants would have nowhere to turn for legal help (contravening Principles 1 and 2). Questions 1-7 Q 1 Do you agree that CFA success fees should no longer be recoverable from the losing party in any case? No. Abolishing Recoverability contravenes the first Principle of access to justice in personal injury cases, outlined above: Accident victims deserve the right to seek redress for injuries caused to them through the negligence of another party, regardless of their financial means. The abolition of recovery will generate huge gaps in access to justice, an end to full compensation for injured people and will reward defendants for poor behaviour. Q 2 If your answer to Q 1 is no, do you consider that success fees should remain recoverable from the losing party in those categories of case (road traffic accident and employer s liability) where the recoverable success fee has been fixed? Yes, in all cases. Q 4 Do you consider that if success fees remain recoverable from the losing party in cases where damages are not sought, a maximum recoverable success fee of 25% (with any success fee above 25% being paid by the client) would provide a workable model? No. The current system works extremely well, and 88% of all success fees are at 25% or below 3 18 January 2011, Jonathan Djanogly MP gave a statement to Channel 4 for Bad Medicine on the issue of legal aid in the health arena 7

8 Q 5 Do you consider that success fees should remain recoverable from the losing party in certain categories of case where damages are sought e.g. complex clinical negligence cases? Please explain how the categories of case should be defined. Success fees should remain recoverable in all categories of cases. Q 6 If success fees remain recoverable from the losing party in certain categories of case where damages are sought, (i) what should the maximum recoverable success fee be and (ii) should it be different in different categories of case? The success fees currently fixed should remain at their existing levels as they are based on statistical evidence and have been proved to be cost neutral ( the success fee equates to the written off investigation work in unsuccessful cases). Success fees should remain recoverable in all cases and should be fixed where there is sufficient data to ensure that the success fee provides for cost neutrality and allows good access to justice to those with less straightforward claims. Q 7 Do you agree that the maximum success fee that lawyers can charge a claimant should remain at 100%? Yes. Section 2.1 Conclusion We strongly oppose any reforms that will remove the recoverability of success fees. Any such proposals contravene Principles 1, 3 and 9 (as outlined above). The proposals put an end to full compensation to those who most need and deserve it, create huge access to justice gaps and incentivise obstructive behaviour by defendants. Furthermore, they are based on a flawed understanding of the causes of excessive costs, a position clearly disproved by Professor Peysner s findings on defendant action. Section 2.2: After the Event Insurance Premiums (ATE) NAH rejects the proposals put forward in s.2.2 which suggest that ATE insurance premiums are simply an expensive form of one way costs shifting. Please note that this section should be read in conjunction with our response to section 2.5 on one-way cost shifting. After the Event insurance plays a vital part in the personal injury market and, following the abolition of legal aid in this market, is critical to ensuring access to justice for many claimants. If the ATE insurance premium was no longer recoverable from the losing party then accident victims would be reluctant to make claims, contravening Principle 1. One of the main barriers to good claims being pursued is the claimant s fear of the personal costs consequences. In a survey of claimants referred to solicitors by NAH who had successfully completed claims 88% said they would not have claimed if they thought they might have to pay the other side s legal costs. ATE can entirely remove that fear in way that any QOCS system cannot, due to the subjective application of the disqualifying provisions of QOCS, which inevitably will be retrospective. It is not fair that the claimant should meet the cost of the claim or litigation which is only necessary due to the fault of the defendant. We believe that this would contravene Principle 3 of the principles of access to justice which we set out at the start of this response. The availability of a stable ATE market is vital for the operation of Conditional Fee Agreements in personal injury litigation. It is also important to recognise that ATE protects the individual claimant, 8

9 but does not compensate the claimant solicitor for their costs in the event of a loss. It is clearly wrong to argue, as we know some defendant insurers do, that ATE in some way protects or encourages claimant solicitors to pursue weak or spurious cases. The opposite situation is in fact the case. ATE providers have strict underwriting criteria that must be adhered to. This prevents weak or spurious claims entering the system and provides a further check on the solicitors own risk assessment process. It is suggested that the extension of BTE insurance is a means of filling any gap left by the ending of recoverability of ATE premiums. In NAH s view, in order to provide a BTE premium to cover the costs of claims and to make a profit for the insurer, the cost of the policy would inevitably be prohibitive for the majority of consumers, particularly those less well off with limited disposable income. It is notable that take up of basic household contents insurance is very low amongst certain socioeconomic groups. If BTE insurance was set at a level where it was generally affordable, no insurer would be interested in providing it. It is notable that no insurer has been able to make BTE viable during the last 40 years and there is no evidence to suggest that the BTE market will develop to provide to a solution to the problems that the abolition of the recovery of ATE premiums would create. Q 11 Do you agree that ATE insurance premiums should no longer be recoverable from the losing party across all categories of civil litigation? No. Q 12 If your answer to Q 11 is no, please state in which categories of case ATE insurance premiums should remain recoverable and why. ATE should remain recoverable in all cases where there is an asymmetric relationship between the parties and whenever access to justice requires it. This extends to all cases of personal injury, clinical negligence, professional negligence and contested probate. Q 13 If your answer to Q 11 is no, should recoverability of ATE insurance premiums be limited to circumstances where the successful party can show that no other form of funding is available? This is in fact already working in practice. SRA rule 2.03(1) (g) states that a solicitor is under a duty to advise their clients of the most appropriate way to fund their case and must consider all options. A solicitor is unlikely to advise a client to pursue a claim on a CFA (with ATE cover) if there is a more suitable method. This would be a breach of the SRA code which could lead to the solicitor s suspension, fine or striking off the roll. It must be borne in mind that a possible alternative form of funding may not be appropriate. Many BTE policies provide significant restrictions making them unsuitable. There is no need to change the existing practice in this area as it is entirely within the Courts power to disallow the recovery of a premium if the court determines it was not appropriate to take a premium out. Q 14 Do you consider that ATE insurance premiums relating to disbursements only should remain recoverable in any categories of civil litigation? If so, which? ATE insurance premiums should remain recoverable in all categories of civil litigation. If recoverability is limited to disbursements only, it is uncertain whether this would provide economic conditions for a viable ATE market to exist at all. Q 17 How could disbursements be funded if the recoverability of ATE insurance premiums is abolished? 9

10 There is no adequate means by which disbursements will be funded should the recoverability of ATE be abolished. The majority of injured people cannot afford to bring claims if they are required to meet disbursements. It is important to note that the impact of an accident frequently causes immediate financial detriment and vulnerability due to loss of earnings or other losses which usually result from an accident. The costs of disbursements are beyond most people particularly following an accident. Disbursements in employer s liability claims are frequently above 1,000 and are much higher in clinical negligence and more serious injury cases. In a survey of claimants conducted by NAH, 57% of claimants who had brought successful claims would not have claimed had they been told they might have to pay something towards their claim. Abolition of recoverability will create huge limitations on good access to justice as claimants will not be able to bring cases. Disbursements levels are directly related to defendants behaviour. The longer a case is dragged on by a defendant the higher the disbursements are and the less affordable the claim becomes. The abolition of recoverability of ATE insurance and the disbursement cover it provides would create perverse incentives for insurers to delay or fail to settle cases in the expectation that funding will dry up as we can see from the Peysner Report, this outcome will be almost certain. It is a license for insurers to make litigation uneconomic and unsustainable for claimants via their conduct in contravention of Principle 9 of the core principles which we outline above: Lord Justice Jackson suggests that claimants will be able to fund disbursements themselves, but in reality the vast majority of claimants will not be able to afford this The more serious injury, the more complex the evidence and the higher the level of disbursements ending recoverability will have the most severe impact on those with the most serious injuries whose need to access justice is greatest Legal aid is likely to be further diminished as a result of the Government s reforms and will therefore will not be a realistic means by which disbursements can be funded Solicitors, under increased pressure to reduce costs due to diminished success fees and fixed costs, would be disinclined and unable to afford the funding of disbursements. In reality the decision is often not the solicitors in any event rather their bank, which in many cases will not support the practice of law firms funding potentially irrecoverable, uninsured disbursements. The extension of BTE is very unlikely to occur or provide a solution Lord Justice Jackson s assertion that funding for disbursements will be found by banning referral fees relies on his proposals being adopted in their entirety. Whilst NAH has never charged referral fees we endorse the Legal Services Board s view that there is no evidence supporting a ban. NAH opposes a ban on referral fees. Should one piece of the jigsaw not be in place, any logic to his proposals in this respect disappears It is NAH s view that if the recoverability of ATE insurance premiums is abolished, claimants will be prevented from accessing justice. In all likelihood the majority will not be able to afford to bring claims or if they do they will have to borrow money at unacceptable levels of interest which they may be unable to repay. The end to recoverability would reopen the personal injury market to disreputable organisations who will consider funding disbursements in return for a punitive and disproportionate share of any damages recovered. Removing this perfectly valid and appropriate form of funding would in fact play into the hands of those organisations that prey on vulnerable people. This is an entirely unacceptable proposal and contravenes Principles 1, 2, 3 and 9 of the core principles which we set out at the start of this response. 10

11 Q 18 Do you agree that, if recoverability of ATE insurance premiums is abolished, the recoverability of the self-insurance element by membership organisations provided for under Section 30 of the Access to Justice Act 1999 should similarly be abolished? No. Recoverability should be the same for everyone. Section 2.2 Conclusion If recoverability of ATE premiums is abolished, a crucial route to access to justice will be removed and vulnerable injured claimants will be forced to fund cases through undesirable means. The potential damage of implementing this proposal should not be underestimated, particularly set against the flawed belief that high costs are the fault of claimants and their solicitors, a position rejected by the Peysner Report. Section 2.4 Part 36 Offers Q 21 Do you agree with the proposal to introduce an additional payment, equivalent to a 10% increase in damages, where a claimant obtains judgment at least as advantageous as his own Part 36 offer? Yes. There is currently a significant imbalance between benefits likely to be conferred on claimant and defendant respectively under Part 36. Q 22 Do you agree that this proposal should apply to all claimant Part 36 offers (including cases for example where no financial remedy is claimed or where the offer relates to liability only)? Please give reasons and indicate the types of claim to which the proposal should not apply. Yes, in principle, whenever the offer is to settle the whole claim (though if no damages are claimed it is hard to see how it would work). Yes also where the offer is on the issue of liability. That is because such offers are highly relevant when made, usually because liability is disputed, and, in those circumstances, the defendant refusing to accept the offer is what effectively prevents settlement. This also reflects current case law that an offer on liability carries the deemed costs order under Part (see Onay -v- Brown [2009] EWCA Civ 775) and that those cost will be of the whole claim, not just the issue of liability (see Sutherland -v- Turnbull [2010] EWHC 2699 (QB)). Q 23 Do you agree that the proposal should apply to incentivise early offers? Please explain how this should operate. Yes. There is, however, the problem of late offers carrying the same benefits as early offers. Early offers can be incentivised by simply replacing the provision for interest on damages with the 10% increase but leaving in place the provisions for indemnity costs and interest and enhanced rates on costs effective from the end of 21 days following the relevant offer. That should continue to incentivise early offers but it is essential to retain the approach to proportionality set out in Home Office v Lownds (2002) EWCA Civ 365 (an unintended consequence of changing that rule would be to disincentivise timely and effective claimant Part 36 offers especially in cases of modest value). Q 24 Do you consider that the increase should be less than 10% where the amount of the award exceeds a certain level? If so, please explain how you think this should operate. 11

12 No. If the damages are more substantial the interest should be more substantial pro-rata as proposed. Q 25 Do you consider that there should be a staged reduction in the percentage uplift as damages increase? No, for the reasons set out above. Q 26 Do you agree that the effect of Carver should be reversed? Yes. Q 27 Do you agree that there is merit in the alternative scheme based on a margin for negotiation as proposed by FOIL? How do you think such a scheme should operate? No: not at all. This would be to restore Carver. It is simply re-visiting a proposal rejected at the time of the claims process because the effect would be to drive down levels of damages. The law is quite clear that a defendant must make an adequate offer see, for example, Straker -v- Tudor Rose [2007] EWCA Civ 368. If it were otherwise then, to ensure parity, the same principle would have to be applicable to claimant Part 36 offers, in other words if the claimant offered nearly but not quite enough the extra provisions on interest etc should apply. That would have real practical problems because sometimes the parties may be quite close and, potentially, any margin might mean both claimant and defendant were arguing for benefits even though the outcome was more than the defendant s offer but less than the claimant s offer. Section 2.5 Qualified One Way Costs Shifting This section should be taken into account alongside NAH s comments on the proposals put forward in section 2.2 of the Government s paper. NAH has robust evidence which shows that the perception of a risk of payments is extremely stressful for potential claimants and is the main reason which would prevent people from accessing the justice which they deserve, contravening Principles 1 and 2 of justice in personal injury cases: The uncertainty that Qualified One-Way Cost shifting creates would be an enormous barrier to access to justice for the majority of personal injury victims. A recent consumer survey commissioned by NAH showed that 88% of claimants could not have afforded to go ahead with their claim if they had thought they might have to pay the other side s legal costs. The proposals put forward in section 2.5 contravene the second of the core Principles of justice in personal injury cases; that financially vulnerable claimants should not be deterred from making a legitimate claim on the grounds of any potential cost, whether known or unknown at the start of the claims process. There is a further problem with this proposal due to the various qualifications required for one-way cost shifting to be available. Section 2.5 puts forward a number of ill-defined, subjective tests which would create a great deal of confusion in an unworkable system. For example, how will a claimant s wealth be decided and defined; how will the term frivolous be defined? Such subjective tests create further uncertainty amongst potential claimants. There is also the very real fear amongst claimant solicitors that these proposals will allow and encourage defendants to use QOCS in an inappropriate, even threatening manner. For example, insurers may suggest to claimants that their 12

13 case is fraudulent and that they must drop it, or risk losing money. This potential shift away from equality to an imbalance of power is very concerning for consumers and would be extremely destructive particularly when the new evidence from Professor Peysner on the role of defendant action in contributing to excessive costs is noted. The argument that QOCS will operate in a similar way to the old legal aid shield is unsustainable. Insurer tactics and conduct has changed markedly over the last decade as allegations of fraud and other forms of aggressive conduct during litigation were much less prevalent prior to There was simply no economic sense in seeking a costs order against a party with a legal aid certificate, as they would by definition be of limited means and be unable to meet any costs liability. The situation with QOCS is quite different in that the exceptions will apply to all claimants including home owners who are worth pursuing for costs, in stark contrast to legally aided parties. It is inevitable that if implemented the QOCS regime would create huge uncertainty for all parties with the inevitable consequence being a costs war on a massive scale. It is our view that the QOCS proposals must not be implemented. ATE is the only structure which will provide the certainty which claimants need in order to have the confidence to bring forward a claim. Based on the detailed consumer research we have undertaken, we believe that introducing QOCS would block access to justice for many, perhaps even a majority, of accident victims. Q 28 Do you agree with the approach set out in the proposed rule for qualified one way costs shifting (QOCS) (paragraph )? If not, please give reasons. No, as above. Q 29 Do you agree that QOCS would significantly reduce the claimant s need for ATE insurance? No Q 30 Do you agree that QOCS should be extended beyond personal injury? Please list the categories of case to which it should apply, with reasons. No Q 31 What are the underlying principles which should determine whether QOCS should apply to a particular type of case? NAH considers QOCS to be unworkable. Q 32 Do you consider that QOCS should apply to (i) claimants on CFAs only or (ii) all claimants however funded? As above, NAH considers QOCS to be unworkable Q 33 Do you agree that QOCS should cover only claimants who are individuals? If not, to which other types of claimant should QOCS apply? Please explain your reasons. No Q 34 Do you agree that, if QOCS is adopted, there should be more certainty as to the financial circumstances of the parties in which QOCS should not apply? NAH does not believe that QOCS should be adopted. Q 35 If you agree with Q 34, do you agree with the proposals for a fixed amount of recoverable costs (paragraphs )? How else should this be done? 13

14 N/A Section 2.5 Conclusion NAH strongly opposes the proposal to introduce Qualified One Way Cost Shifting. NAH believes that QOCS will be extremely detrimental to access to justice. ALTERNATIVES Section 2.7: Alternative recommendations on recoverability Q 36 Do you agree that, if the primary recommendations on the abolition of recoverability etc are not implemented, (i) Alternative package 1 or (ii) Alternative Package 2 should be implemented? NAH is clear that the best outcome of this Green Paper for consumers and personal injury victims would be that Alternative 1 is implemented, with a key amendment regarding After The Event insurance. Paragraph 177 on ATE states: g) No recovery of the ATE insurance premium where the defendant has admitted liability during the relevant pre-action protocol period or possibly some shorter period i) Recoverable ATE insurance premiums to be capped at 50% of damages awarded However, these two points are incompatible, and (individually) flawed. The reason that (g) and (i) together are flawed is that the cumulative effect of both would be to place all of the burden of ATE recoverability on the amount of damages received, leading to huge reductions in damages created by premium recoverability shortfalls. If no element of recoverability is permitted for cases which are admitted in the protocol period then all the risk transfers to cases which are denied. This will defeat the insurance principle, leading to much higher premiums for denied cases. The higher premiums created are likely, due to underwriting risks, to be higher than 50% of damages which will at a stroke wipe out damages in lower value claims. These claims are entirely valid and important claims to injured people, particularly those who are less well off. This proposal, left unamended would significantly restrict access to justice in whole categories of perfectly legitimate, important personal injury claims. We do not believe that the Ministry of Justice can conceivably support such an outcome, but that would be the effect of introducing AP1 in its current form. We believe that the concept of section g is flawed as there is no logical relationship between the level of damages and the level of risk in a case. Removing recoverability in these cases would cause premiums in denied cases to skyrocket, thus adversely affecting the whole of the ATE market and having consequential detrimental impacts on claimants. 14

15 NAH s solution One clear solution is to extend staged or discounted premium regimes, where the ATE premium recoverable varies dependant on the risk profile of the case and how the claim progresses. There is clear evidence that this is already working very successfully in practice and events have rather overtaken the proposals set out in Lord Justice Jackson s final report. Recoverable staged or discounted premiums, as they have been applied to the new RTA process provide a good solution for both parties and have resulted in significant competition and modest, proportionate premiums. It is evident that very significant commercial drivers have become active in the ATE market since Lord Justice Jackson s final report was published. The Benchmark model, used by NAH, is a good example of such a system. It provides for a very modest RTA premium ( 87.50) for cases where there is an early admission of liability and a higher premium ( 495) where liability is denied. This promotes early settlement of cases where appropriate whilst at the same time avoids overly punitive or disproportionate premiums in cases which are denied but which eventually settle. A further potential extension of this concept would be to cap defendants costs in the fast track. It is notable that almost no consideration has been given to defendants costs which are often significant, even in fast track cases. One obvious way to reduce the cost of ATE premiums would be to fix defendants costs. This would provide an ATE underwriter with certainly as to the maximum liability and would significantly reduce premiums and drive competition. Since Lord Justice Jackson s final report was published, defendants costs have been fixed in the MOJ RTA process, resulting in significant downward pressure on ATE premiums to the extent that premiums are likely to settle at a fixed level. Alternative Package 1 should be considered in the context of the government s plan to consult on extending the streamlined process which exists in RTA claims to other categories of claim. In NAH s view, a system of recoverable but discounted premiums is entirely workable and provides the best means of allowing good access to justice whilst at the same time avoids disproportionate or excessive premiums. We would be very happy to expand on this concept should the Ministry of Justice wish to ascertain further details of how this would work in practice. With an alteration, allowing for staged recoverable premiums NAH believes the introduction of Alternative Package 1 is acceptable from a consumer s perspective. Alternative Package 2 NAH does not support AP2 as it clearly contravenes the third Principle of the key principles that we set out at the start of our response that victims should be entitled to restitution to put them back in the same position as they were in before their injury. The inability to recover ATE premiums would end full compensation at the expense of the accident victim and to the benefit of the at fault party. Alternative Packages: conclusion NAH considers AP1 to be the best possible outcome of this Green Paper, with the proviso that staged / discounted premiums are introduced for ATE premiums instead of no recoverability during the protocol period linked with an arbitrary cap. 15

16 Section 2.8: Proportionality Q 40 Do you agree that, if Sir Rupert s primary recommendations for CFAs are implemented, a new test of proportionality along the lines suggested by Sir Rupert should be introduced? No. The proposals will inevitably lead to a crude proportionality assessment between damages recovered (even when reduced by contributory fault) and costs incurred. We have established, with reference to Professor Peysner s report, that defendant actions are a significant contributor to excessive costs. In our view further research as to the causes of excessive costs is required before a properly informed view of any necessary reforms to the proportionality test can be taken. Defendants, via obstructive tactics could, under these proposals, make litigation uneconomic for claimants. Q 41 If your answer to Q40 is no, please explain why not and what alternatives would you propose to achieve the objective of ensuring that costs are proportionate? The provisions of the CPR determine the work to be done on a case. The protocol must be complied with. A medical report must be obtained and a schedule of damages served. After issue, witness statements must be drafted, signed and served. Disclosure must be dealt with, costs estimates prepared, allocation and listing questionnaires drafted, trial bundles put together. Procedure could be reduced, for example, by abolishing the protocol, witness statements and cost estimates. However, these steps were introduced for a reason to give defendants early warning of the case against them, prevent trial by ambush and promote early settlement. They all come with a cost. It is generally agreed that the Woolf reforms have increased costs by front loading. Each new change in procedure adds to the costs (e.g. requiring detailed cost estimates in all multi-track cases at allocation and listing probably increases costs rather than saving them). The existing Lownds test of necessity deals with this problem of having to comply with process to bring the claim, by allowing costs that are necessary to do so, even if they are apparently disproportionate to the outcome. If work is necessary as the only way to obtain the evidence and bring proceedings to a conclusion, then Claimants should be able to recover the costs. Proportionality is better dealt with by looking first at reducing process rather than arbitrarily restricting the costs that can be incurred without limiting the work that has to be done. These proposals also need to be considered in light of the Government s consultation on extending fixed costs which, if introduced in personal injury, will make any changes to the proportionality test superfluous. Q 42 How would your answer to Q40 change if (i) Sir Rupert s alternative recommendations were introduced instead, or (ii) no change is made to the present CFA regime? Please give reasons. (i) Not at all. Success fees and ATE premiums reflect costs risk and have no mathematical relationship to the amount of the damages. (ii) Not at all. Success fees and ATE premiums reflect costs risk and have no mathematical relationship to the amount of the damages. Q 43 Do you agree that revisions to the Costs Practice Direction, along the lines suggested (at paragraph 219), would be helpful? 16

17 If the new test is introduced, satellite litigation on a significant scale is inevitable. Q 44 - What examples might be given of circumstances where it would be inappropriate to challenge costs assessed as reasonable on the basis of the proportionality principle? See our answer to question 41. CONCLUSION NAH has new data and evidence, compiled by Professor Peysner of Lincoln Law School, which entirely undermines the basis under which the Jackson recommendations were proposed. This evidence demonstrates the considerable effect of defendant action on increased costs. At the very least, we believe that the Ministry of Justice must undertake further research in this area before formulating significant changes to the regulatory regime governing civil litigation costs. Our specific arguments on the Jackson proposals are all based around nine principles of justice in personal injury and clinical negligence cases, which we believe are commonly accepted by stakeholders and indeed expected by consumers. These principles are fundamental in order to ensure a fair and just system is in place. It is our view that any changes proposed for reform of civil litigation funding and costs should not contravene any of these principles. The net effect of many of the proposed changes is to create a sense of uncertainly from a claimant perspective in terms of costs during the process. o For instance, proposals around qualified one way costs shifting are unclear as to who would qualify, leading to significant fear among potential claimants that they would be lumbered with a big legal bill. o Any fear of having to pay costs, and uncertainty around what these costs might be at the start of a case, will prevent claimants from seeking the redress they deserve o Our evidence suggests around 88% of legitimate claimants would be deterred from making a claim, a massive setback for the principles of access to justice o Similarly, removing ATE recoverability around disbursements would create a vast barrier for claimants and their solicitors in progressing a case o Therefore, we believe that recoverability of ATE premiums and success fees remains a vital part of the process NAH believes that Alternative Package 1 represents a fair approach to the issue, with one or two small amendments to ensure that it is workable. This would be a far better solution, taking into account the needs of all parties in the debate, than either the main recommendations, or Alternative Package 2. For further information please contact: Jonathan White, Head of Legal National Accident Helpline Telephone:

18 ANNEX ONE: PROFESSOR PEYSNER REPORT 18

19 ANNEX TWO: DATA FROM THOMPSONS SOLICITORS IMPACT OF JACKSON RECOMMENDATIONS ON FAST TRACK WORK INJURY CLAIMS A survey of 10,949 work accident cases concluded by Thompsons Solicitors between to with damages between 1,000 and 25,000. Total damages in all cases 53.39million. Cases settled under the Protocol, without court proceedings. 6,662 cases with total compensation of 26.6 million. Average total compensation per case 3,995 including average general damages of 2,852 Post Jackson: Average compensation would be initially 4,280 (Claimants gain 285 in general damages). Success fee payable out of damages is 575. Insurance premium also payable out of damages estimated at 560. Claimants lose 1,135 ( ), an average loss of 850 or 21.3% of compensation. In total this means a loss of 5.66 million in 6,662 cases. Cases settled after the commencement of court proceedings. 4,171 cases with total compensation of 25.9 million. Average total compensation per case 6,213 including our general damages of 4,784 Post Jackson: Average compensation would be initially 6,691 (Claimants gain 478 in general damages). Success fee payable out of damages is 1,387 Insurance premium also payable out of damages estimated at 560. Claimants lose 1,947 ( 1, ), an average loss of 1,469 or 23.6% of compensation. In total this means a loss of 6.13 million in 4,171 cases. Cases concluded at trial 19

20 116 cases with total compensation of 800,000. Average total compensation per case 6,936 including our general damages of 6,235 Post Jackson: Average compensation would be initially 7,560 (Claimants gain 624 in general damages). Success fee payable out of damages would be capped at 1,890. This is only 26.8% of the amount currently agreed by all parties as necessary to ensure there is a fund from winning cases to pay for losing cases and investigate possible cases. Insurance premium also payable out of damages estimated at 560. Claimants lose 2,450 ( 1, ), an average loss of 1,826 or 26.3% of compensation. In total this means a loss of 211,816 in 116 cases. Crucially this confirms that it would not be viable to pursue the average fast track work accident case to trial. Instead of the 100% agreed by all parties as the appropriate success fee in those cases contested at trial (reflecting 50/50 prospects) an average of only 26.8% of costs would be available to pay from winning cases into the fund to meet costs in the losing cases. CONCLUSION Accident at work cases in the fast track are the vast majority of cases. These figures demonstrate that, on average, Claimants will always lose under the Jackson proposals. The total loss is over 12 million (in these 10,949 accident at work cases) an average loss of 1,096, amounting to 22.5% of their compensation. The loss increases as the case is pursued further from 21.3% in cases settled early under the Protocol, to 23.6% where the case is settled after court proceedings are commenced rising to 26.3% where the claim is fought to trial. This is a perverse incentive for insurers to drag a claim out, defend the indefensible and force the injury victim to accept lowball offers. They also demonstrate that it will not be viable for the solicitor to pursue the case to trial as only a fraction of the success fee is payable in the winning cases to cover the costs in the losing cases. It s like a bookie offering odds of approximately 4 to 1 in a 2 horse race where both horses are equally matched, i.e. risk 1 on a 50/50 chance and the payout is only 26.8p if you win. Again this amounts to the same perverse incentive on insurers to act unreasonably and force injury victims to undersettle their claims. 20

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