Access to justice: Jackson report is self-defeating

Andrew Tucker

Many of the recommendations would represent a serious and worrying step ­backwards in the consumer’s access to legal services, one of the key issues ­Jackson LJ was supposed to promote and something at the very heart of the Legal Services Act that was designed to ­modernise the industry.

One of the groups that would be hardest hit would be victims of serious personal injury (PI) – ironically, in many cases, those who need the most help from the law.

Progressive reforms by Parliament mean access to justice for PI claimants has never been better. The ‘no win, no fee’ ­system allows successful claimants to recover their reasonable costs, keep 100 per cent of the compensation they are awarded and pay nothing if they lose. This opens the door to the court to everyone.

But Jackson LJ’s recommendations on recoverability of success fees would require claimants to make a contribution to their costs, which would reduce their compensation, in many cases ­substantially. This recommendation would not reduce the cost of civil claims, but simply pass the burden from the ­losing party to the claimant.

Compensation is calculated carefully to cover the claimant’s losses and, in the most serious cases, to pay for a lifetime of future care. Yet it is in these cases that claimants will suffer most, having to hand over a substantial sum to pay their costs. That cannot be fair or just.

The level of success fees is also ­criticised. These can be high when difficult cases are won, but not every case is ­successful and success fees enable good firms and barristers to take on cases where victory for claimants is not so clear cut. With lower success fees, firms and ­barristers are more likely to become more risk averse and cherrypick cases. Claimants will miss out on the chance to bring their cases. This is the opposite of what Jackson LJ wants to achieve.

The courts have all the powers they need to reduce disproportionate costs (and success fees) and are not slow to do so. However, if they are to be paid by claimants, success fees are less likely to be challenged. If the reward for risk-taking by the legal profession is not adequate, the door to the court swings shut for those with more complex, difficult cases.

The recommendation on fixed fees is no better for claimants. Again, that would favour the defendant over the claimant. While big insurers and corporations would have their usual unlimited budgets to defeat claims, claimants would have to operate within prescribed limits.

The upshot would be a two-tier system, putting those on limited incomes at a clear disadvantage against those who can afford to fund their own legal actions, which ­represents a huge step backwards in time for all. Inequality of arms and a serious risk of a reduction in the quality of ­representation is the likely result.

This report sadly does not put at the forefront the most important people in the access to justice debate – those who need redress and, in PI cases, who are often individuals of limited means for whom compensation is essential to cover losses they simply cannot afford to bear.

What happens next is up to the ­politicians. But major legislative change to implement the reforms will not just turn back the clock, but will undoubtedly lead to years of satellite litigation over their interpretation.

The current system works. Now, at the start of 2010, is not the time to turn back time.