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Jackson Analysis and After the Event Insurance

I sold my running machine on Ebay for £30.99 last night. The hill function had broken and I (strangely) like running up hills.

So thank goodness for the Jackson Report Consultation document. It's like climbing K2 only less straight forward. Here are some examples:

  1. Page 4 (Ministerial Statement): "Some defendants have complained that the disproportionate costs of defending claims against them mean that they are denied effective access to justice".... and Jackson proposes qualified one way costs shifting which means defendants will not get their costs if they win (apart from the odd exception) but will have to pay the claimant's costs if they lose. How does that shift the costs burden back to 'an even keel'?

  2. Page 7 (Executive Summary): "He [Jackson] also argues that access to justice is not just about allowing claimants to bring reasonable actions, but also about ensuring that defendants can resist those claims which should not succeed, without being liable for disproportionate costs"... a lovely soundbite but blown out of the water by qualified one way costs shifting (QOWCS). If QOWCS is brought in, claims will increase (see MoJ's own impact assessment) and it is likely that defendants will find it cheaper to simply pay off claims rather than defending them because even if they win, they won't get their costs.

  3. Page 8 (Executive Summary): "QOWCS would offer costs protection to the vast majority of personal injury claimants, with their only having to pay a winning defendant's costs where it is reasonable to do so based on the claimant's own wealth or their reasonable behaviour during the case." ....welcome to satellite litigation central. Who is going to determine the wealth of individuals (we presume similar to the current system of oral examinations)? What will be considered to be the cut off point - if you own your own house? If you have a job? Claimant's want certainty not a system where they don't know until the end whether or not they are going to face a bill for the defendant's costs. I presume the defendant will want this as well - it may lead to them fighting rich people's cases but paying out for poor ones as more cost efficient. Very Bolshevik.

  4. Page 15 (The Consultation): "The recommendations are of course Sir Rupert's. It should be noted, however, that in some areas the Government has suggested refinements in considering the implementation of these recommendations."... or in other words - the Government does not agree that some of the Jackson recommendations will work so have changed them. Hmmmm.

  5. Page 24 (The Consulation): Defendants argue "CFAs have been blamed for fuelling a 'compensation culture' by encouraging people to pursue weaker claims at absolutely no cost to them in the hope that a defendant may make a commercial decision to pay the claimant off by settling rather than defending the claim, at potentially much greater financial risk."...isn't this precisely what qualified one way costs shifting will do? There will be no risk at all to claimants (at least now After the Event Insurers analyse the claims and only cover them if there are prospects of success). There will be an explosion of speculative claims and defendants will find it cheaper to pay them off early rather than fight. Mention is then made of Lord Young's report but no mention of course that he concluded that there wasn't a compensation culture - it was just the media causing the problem.

Right - I now have a day off - back on Monday. Don't worry - there are plenty more holes in the proposals. The Government has a mountain to climb. Which reminds me....

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