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Monday, 9 December 2013

Administration trumps justice

Well we are at that time of year when we look back over the past year and predict what might await us in the year ahead. For many lawyers 2013 has been a year to forget. We have seen the removal of legal aid for most civil proceedings, the battering of criminal legal aid practitioners, swathing cuts in the amounts recoverable by victims of accidents to name just a few.

So the sooner we leave this year behind the better. But what might 2014 bring? Here are just some thoughts.

I certainly predict that the civil courts are going to have a busy time. This is despite all of the efforts of the government and their friends in the insurance industry to deter claimants. This will partly be driven by the recent Mitchell case that I mentioned a week or so ago –

The clear message of that case is that we have moved from the administration of justice to the justice of administration. Justice will no longer rule the day. Filing documents on time now trumps everything. The most marginal of diary errors can lead to legal claims against solicitors. This is at a time when the indemnity insurance market is tougher than it has ever been. Who knows who will get insurance next time around. Firms will be totally focussed on avoiding these issues and it is likely that the courts will be overwhelmed with applications for extensions of time in anticipation of any possible delay. Dealing with these administrative applications will take up huge amounts of court time that would be better spent dispensing justice.

But we will also see a big increase in the number of trials in Personal Injury Cases. For cases after April 2013 we have a costs regime known as Qualified One Way Costs Shifting (QOCS). This follows the abolition of the right of claimants to recover the premiums taken out to protect themselves against the payment of legal costs to other side if their case fails. The Ministry of Justice has dealt with this by removing the winning party’s right to recover legal costs of they win. This will have a double effect on the way litigation is pursued. Firstly, the drastic cuts in recoverable legal costs have been a deterrent to out of court settlement in any event. But QOCS means that far more cases will go to trial. If a claimant does face any significant risk of adverse costs if they lose then they might as well carry on as far as they can.

At present, a claimant has to pay a Hearing Fee of just over £1000.00 as a case approaches trial. This is repayable if the case settles. In a consultation document published last week the government propose abolition of that repayment which is another disincentive to settle before trial.

Trials in civil cases have become the exception over the last 10 years or so. That will certainly change as these reforms take full effect.

The overall effect of these ‘reforms’ is likely to be a big increase in the cost of litigation. The intention was supposed to be the opposite. But as litigants are forced through more and more hoops to secure justice the cost is likely to go through the roof.

Last week’s consultation says that the civil courts’ system costs the tax payer about £100m a year. That is about £1.50 per head of population of the UK. Most people I know are prepared to pay a fair price for a fair system.

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