A wise friend once observed that whenever you read a newspaper article on a subject you know well, it’s clear that the journalist has only gained at best a superficial grasp of the topic. This then makes you question the validity of everything else that you read in the papers. Now apply that logic to the government’s approach to Civil Litigation Funding and you have to wonder about their capacity to run the country. If they are applying the same insight and thoroughness to foreign policy, defence, home affairs, the Health Service and education the prospects are alarming.
At first it seemed that they had been successfully lobbied by the insurers, but they, it would seem, are very unhappy with Qualified One Way Costs Shifting (along with the Plain English Campaign) and expect premiums to rise due to the MOJ/Jackson reforms. So if access to justice will be reduced and insurance will cost more, who gains from this? Ken Clarke expects to save £50m from the NHS no longer paying for ATE, but how much tax revenue will the Exchequer lose as claimant and defendant solicitors are laid off, ATE providers close their doors, costs draughtsman vanish, CMCs disappear, CFA field agents become a thing of the past and all of their accountants, suppliers, advertising agencies, landlords, etc suffer with them?
Reading Lord Young’s report, commissioned by David Cameron whilst in opposition, it’s clear that there was antipathy to the brash advertising that encourages the great unwashed to take on big business with confidence. Young concluded that the compensation culture existed only in perception, but did not allow this unwelcome truth to deflect him from his purpose, which it seems was to contribute to the case made by Ken Clarke recently in the Commons. Clarke’s case, as Daniel Morris has shown, was built on deeply flawed figures, which may present a glimmer of hope if he can accept his mistakes. More likely he won’t, as reducing the number and cost of claims assists the government enormously. I can’t get away from the feeling that the best way to reduce the med neg bill would be to sort out whatever’s wrong with the NHS and reduce the number of victims, rather than diluting the principle of compensation, a fundamental tenet of English law. What next; the presumption of innocence?
Assuming the proposed changes take place, will the personal injury market really grind to a halt? Accidents will still happen and people will still be entitled to be compensated. What will need to be adapted will be the "deal” offered by claimant solicitors. Clients will have to be protected from incurring costs if they lose, and if that means they have to hand over a percentage of their award then so be it. By adopting the worst feature of the American model, i.e. a damages based system, I believe the government has unwittingly paved the way for a transparent marketing proposition which claimants will have more faith in than the "too good to be true” one we have at present.