Post on 01-Apr-2015
MoJ Extension & LJ Jackson’s Civil Costs
Proposals
Simon Johnson14 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 - £400Stage 2 -£800Stage 3 - £500Web portal a magnet for criminal activity?Are EL/PL claims suitable for the scheme?Disease/construction/product claims too?
MoJ – Key Proposals
Adjusting to ChangePortal stabilityHow long to investigate properly?Clinical negligence?No increase to fast-track limitFast track – fixed recoverable costsTimescale
MoJ – Key Proposals
Helping policyholders adjustTo ensure immediate notificationReview KPIs for investigationsDedicated portal team?Impact of increased claims Increased operational costs
In the beginning there was…
Meet the new Costs Avengers
Meet the new Costs Avengers
Meet the new Costs Avengers
Meet the new Costs Avengers
Claimant Costs Schedule: Fast-Track
Claimant Costs Schedule: Fast-Track
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 byAccess to Justice Act 1999
How did we get to this?
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 feeBUT
QOCS
Interaction of QOCS with P36 CPR?Remember C will lose 25% of general damages
in the success feeBUT
Be assisted by:-
QOCS
Interaction of QOCS with P36 CPR?Remember C will lose 25% of general damages
in the success feeBUT
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 feeBUT
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 costs2) 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 costs2) 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 resourcesii) Parties’ conduct
What conduct will make C lose costs protection?
What conduct will make C lose costs protection?
What conduct will make C lose costs protection?
Back to Naomi…
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
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?
Assault
Assaults – Violence between Staff
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
Mesothelioma – Employers’ Liability