New increased fixed fee system will leave 'scope for argument'

Professor John Peysner, who chaired the Civil Justice Council's working party on predictable costs, backed other leading lawyers who have been calling for the scheme of fixed fees in low-value traffic accident cases to go further than the one agreed in December.

“My concern is that unless you have a system that goes all the way from claims to trial, then there are all sorts of perverse incentives to issue proceedings where there's no need to do so, in order to free yourself from what you might regard as an unsatisfactory costs system,” said Peysner.

Claimant lawyers and the Association of Personal Injury Lawyers (Apil) are fiercely resisting such a move. Peysner supported such a post-issue scheme from the off, but he acknowledged that he was “unable to persuade” the Civil Justice Council (CJC) forum.

Writing for The Lawyer this week (PI5), leading claimant lawyer Kerry Underwood also called for a wider scheme. “I have no problem with fixed costs provided that they cover the case from beginning to end, and include severe penalties for a financially powerful party who strings the case out to make a claimant solicitor do, say, £5,000 worth of work for a £1,500 fee,” he argued.

But he noted that in this climate of bitterness over costs, “claimant solicitors simply don't trust insurers to play fair with fixed costs”.

He continued: “As fixed costs will only apply to unissued sub-£10,000 road traffic claims, its scope for argument is endless.”

It was a view that Peysner shared. He felt that the system as it stands worsens the costs crisis.

“The argument at the moment is that the number of cases which is issued is small, and therefore there was no requirement to have a scheme that covers the issue stage,” he said. “But it concerns me that there may be more cases issued under the new regime, which of course will be issued a predictable costs regime. So we may well have more of a problem.”