THE JACKSON REPORT ON CIVIL LITIGATION COSTS

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1 ITEM NO: 9 Report To: AUDIT PANEL Date: 31 January 2012 Reporting Officer: Subject: Report Summary: Recommendations: Links to Community Strategy: Policy Implications: Financial Implications: (Authorised by the Borough Treasurer) Legal Implications: (Authorised by the Borough Solicitor) Pam Williams Executive Director, Finance Wendy Poole - Head of Risk Management and Audit Services THE JACKSON REPORT ON CIVIL LITIGATION COSTS To advise members of the implications of the Jackson Report on Insurance Claims and Payments. Members note the report. No direct links but supports the individual operations within the Community Strategy. Effective Risk Management and Internal Audit support the achievement of Council objectives and demonstrate a commitment to high standards of corporate governance. The reforms once effective could reduce the cost of payments made by the Council in relation to litigated insurance claims. The Review of Civil Litigation Costs,is a review of civil litigation costs in England and Wales conducted by Lord Justice Jackson in 2009, which culminated in the Jackson Report, being presented to Government in January 2010.The main findings and recommendations include:http://en.wikipedia.org/wiki/review_of_civil_litigation_costs cite_note Judiciary_14_January_ The costs system should be based on legal expenses that reflect the nature/complexity of the case. Success fees and after the event insurance premiums should not be recoverable in no win, no fee cases. General damages awards for personal injuries and other civil wrongs should be increased by 10%. Referral fees should be scrapped. Claimants should only make a small contribution to defendant costs if a claim is unsuccessful (as long as they have behaved reasonably). There should be fixed costs for "fast track" cases (with a claim up to 25,000). A Costs Council should be established to annually review fixed costs and lawyers' hourly rates. Lawyers should be allowed to enter into Contingency Fee Agreements. "Before the event legal insurance should be promoted. In it he recommended that success fees on conditional fee ( no win no fee ) agreements and after the event insurance should no

2 longer be paid by losing defendants. As an alternative, he suggested contingency fee arrangements which allow the successful claimant to contribute towards their own legal fees by paying their solicitor up to 25% of their general damages only (i.e. a share of the compensation for Pain, Suffering, Loss of Amenity but not including special damages such as lost earnings). To assist the claimant, who is prima facie likely to be worse off under the Reforms, the Lord Chancellor intends to increase general damages by 10%, implementing long- overdue proposals made by the Law Commission in 1999.It should be noted that the government does not intend to implement all 109 of the Report recommendations in full. This is most evident in its decision to withhold reform of referral fee payments until after the Legal Services Board have finished their own consultation. Jackson s view was that the abolition of referral fees (or limiting them to a maximum of 200) was essential to make the system work. It cannot be a co-incidence that many of the insurers who lobbied hard for the Reforms during the consultation process receive referral fee payments from their panel solicitors via third party capture schemes. Under these arrangements insurers for responsible parties contact potential claimants and encourage them to make claims. They then sell these details on to solicitors on their select panels for fees far in excess of LJ Jackson s proposed maximum. Whilst the report sets out what the government is aiming to achieve, the proof will be in the pudding as to whether we see reduced costs and therefore impact on the public purse. Over a decade ago the civil litigation procedures were changed with the specific aim of making costs proportionate owing to the inherent interests in the process this was never achieved. Risk Management: Access to Information: It is important that claims are properly managed in line with legislation to ensure that judgements on not overturned on a technicality. The Council processes it personal injury claims via its insurers Travelers who manage the litigation risk and ensure a successful outcome for the Council. The background papers can be obtained from the author of the report, Wendy Poole, Head of Risk Management and Audit Services by contacting: Telephone:

3 1. INTRODUCTION 1.1 Lord Justice (Rupert) Jackson published his final report on the comprehensive review of civil litigation costs in January His proposals include a wide-ranging package of reforms designed to bring costs under control and make them fairer. 1.2 The Jackson review was set up in late 2008 following concern about the escalating costs of civil justice. Those costs are often disproportionate to the issues, in particular the sums at stake. 1.3 The Report can be read at A93-56F09672EB6A/0/jacksonfinalreport pdf- the first ever fundamental review, specifically focused upon civil costs - sets out a coherent package of interlocking reforms, which are designed to reduce litigation costs and to promote access to justice. 1.4 The final report covered 45 subject areas and runs to 557 pages, with recommendations across the whole spectrum of civil litigation. 1.5 It is an extensive report that has already has media exposure with the recommendation of the banning of referral fees and the current Government appears to be very keen to back the report. 2. KEY ISSUES AND IMPLICATIONS 2.1 The report overall covered many aspects of the litigation process and a number of them are not relevant to this report. However when considering the Council as a Defendant the report does have beneficial recommendations for the potential savings in regards to claims costs. These are not the awards made to the claimants for the damages as a result of their injury or loss, but the more substantial payments to the successful solicitors who have worked on their behave. These payments can be three to eight times what the claimant has actually received in damages and this is why this review was undertaken, as litigation costs were beginning to spiral. 2.2 As can be seen from the table below and the subsequent claims calculation, the overall Jackson Review recommendations do have a lot of potential to benefit the Council and as the intention is also to deter spurious claimants, it may also make potential claimants and solicitors consider if they actually have a valid claim against the Council. 2.3 Table 1 - Key proposals that would affect the Council as defendants are listed below: Recommendations Losing/paying party will, subject to exceptions, no longer be liable to pay for the cost of the successful party s After the Event Insurance premium. A 10% increase in General Damages to assist claimant in paying success fees to their solicitor. Success fees are no longer recoverable from losing/paying parties. Implications for Council as Defendants Insurers/Council should save money. Potentially less litigation around costs Potentially higher payments to claimants, however this is less than the current amount that is obtained for success fees by solicitors. Success fees are to be paid out of the damages received by the successful party subject to a maximum limit, could lead to a

4 potential push to increase General Damages. Losing/paying party will no longer be liable to pay for the notional premium charged usually by Unions where the Union has undertaken to meet the costs of the other party in proceedings Proportionality - the costs system should be based on legal expenses that reflect the nature/complexity of the case Referral fees should be scrapped - these are fees paid by lawyers to organisations that sell damages claims but offer no real value to the process, Qualified one way costs shifting - claimants will only make a small contribution defendant costs if a claim is unsuccessful (as long as they have behaved reasonably), removing the need for after the event insurance. Establishing a Costs Council to review fixed costs and lawyers hourly rates annually, to ensure that they are fair to both lawyers and clients. Promotion of before the event legal insurance, encouraging people to take out legal expenses insurance e.g. as part of household insurance. Insurers/Council should save money. This means more realistic costs from solicitors and any inflated costs proposed could be challenged and potentially reduced. This is being included in the forthcoming Legal Aid, Sentencing and Punishment of Offenders Bill This could have some impact on the Council recovering costs, however the requirement of the claimant behaving reasonably does apply and does not change the situation for that which currently applies. This would provide independent guidelines on the costs solicitors can charge and reduce the necessity to evaluate costs charges. This would mean we do not have an inflated After The Event Insurance premium to fund as part of a claim. 3. COSTING OF CLAIMS 3.1 Table 2 below demonstrates the implications of the proposals in relation to a claim where the claimant was receiving 5,000 in damages:

5 3.2 Table 2 Costs Calculation COSTS CALCULATION CURRENT REGIME IF PROPOSALS FULLY IMPLEMENTED THE CLAIM PROCEEDS TO COURT Claimant s solicitors base costs Claimant s solicitors base costs(proportionate 10,00 recommendation applied) 5,000 Claimant s solicitors success fee No success fee available (100%) 10,000 VAT 4,000 VAT 1,000 (much lower as base costs lower) Disbursements Court fees, Disbursements Court fees, Experts, Barristers fees Experts, Barristers fees etc. etc. 3,000 3,000 After The Event Insurance Policy 10,000 Would not be able to claim for this. Sub Total 9,000 (add 10% additional damages on the 5,000 award 500) Overall Total 9,500 Total 37,000 Creates a Potential Saving of: 37,000 less 9,500 = 27, TIMETABLE 4.1 The forthcoming Legal Aid, Sentencing and Punishment of Offenders Bill; will include a number of the Key Proposals and recommendations listed above; there has already been a lot of media publicity around the banning of referral fees. The timetable for the bill is that it is currently before the Public Bill Committee, it should then be presented for Royal Assent in the spring of this year with implementation scheduled for October CONCLUSION 5.1 With these reforms LJ Jackson is trying to provide a framework whereby parties could enter into litigation with greater certainty about the costs involved. They would also assist in allowing for some claims to be resolved earlier with greater use of mediation. 5.2 The various recommendations in the Jackson Report should be beneficial to the Council if they are all brought in to force, however currently only some of the recommendations are coming through in the new Bill. This will have some financial benefits for the Council and does have negative implications for solicitors, which unfortunately has lead some solicitors to push through some cases, before the Bill is enacted, to ensure the existing fee structure can still be used. 6. RECOMMENDATION 6.1 That the report be noted.

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