Fixed costs:Woolf's Achilles heel?

For a time it was heretical to pick flaws in the Woolf Report. Lawyers felt duty-bound to welcome it, lest they were seen to be in any way hesitant about reform.

Theoretically, it is a fine report. However, as was earlier pointed out, the actual implementation of the reforms is where the problems lie.

Research carried out by the Association of Personal Injury Lawyers (Apil) has now thrown up one such problem, namely costing. Apil had earlier been accused of whingeing about the Woolf Report. The group argued that personal injuries cases should be an exception to the proposition that costs should be proportionate to the recovery.

It stated that it would be impossible to investigate PI claims within the costs structure suggested by Lord Woolf, as insurers have unlimited funds to throw at their defence. Furthermore, it said there was a huge success rate in such claims and that the defendant who was insured bore the costs.

But research has shown that Apil's concerns are justifiable. Researchers from the Centre of Advanced Litigation at Nottingham Law School, commissioned by Apil, examined 119 PI cases likely to have fallen within Lord Woolf's fast-track scheme that would cost 70 per cent more than Lord Woolf's suggested ceiling.

Furthermore, there were big variations in the costs of each case as well as the time taken by solicitors on similar cases – one spent 24 minutes talking to a client while another spent 14 hours. The figures indicate that fixed costs in PI cases may be unfair to the plaintiff.

Comments by Labour's shadow Lord Chancellor Lord Irvine of Lairg QC at the Bar Conference indicate that he has taken Apil's concerns on board. He has hinted that he may be willing to take a different tack from Lord Woolf, who rejected the group's arguments.

Perhaps Lord Woolf will now see sense.