Opinion: Implant scandal puts knife in Jackson

Lord Jackson’s report risks setting access to justice back by centuries

Danielle Holliday
Danielle Holliday

The recent explosion of stories on the front pages of most UK and European national newspapers concerning the alleged substandard/industrial-grade silicone breast implants ­continues unabated. But what is the likely legal impact on both the regulatory regime and the civil recovery of damages?

It is clearly of major concern that the cosmetic surgery industry is to a great extent completely unregulated. It is also worrying that the paucity of medical data is so extreme that the health secretary has now been forced to use unequivocal and unprecedented threats to obtain relevant ­information from private clinics to ascertain the number of known ­ruptures of poly implant prothese (PIP) implants. In view of the mounting evidence, you have to ask why this step has not been taken sooner.

From a medical point of view, the regulatory impact will be to create a rush by the relevant authorities to ­establish a workable implant register and to compile relevant and reliable data. The impact in terms of a potential civil remedy is, however, far more ­difficult to determine.

Even in the twilight of the pre-Jackson report world the legal, ­administrative and regulatory ­complexities in bringing group ­litigation proceedings to a successful conclusion remains formidable. In a post-Jackson report world the ­eventual outcome is at best unclear.

The likely implementation of the majority of Lord Jackson’s proposals and their impact on the (non) recoverability of significant success fees has yet to be tested. Similarly, the non-recoverability of after-the-event (ATE) premiums from the losing ­defendants, together with the ­uncertainties of the courts’ approach to the concept of qualified one-way costs shifting (QOCS) raises further uncertainties.

The recent decision by the Court of Appeal in Motto & Ors v Trafigura Ltd & Anor (2011) on the issue of the non-recoverability of the cost of funding will also impact on the financial ­viability of bringing such claims.

What is clear, however, is that against a background of complex group litigation these difficulties and uncertainties are unlikely to present an attractive financial model for ­solicitors’ practices.

Moving on from this, the potential exposure of any practice involved in post-Jackson group litigation will only serve to increase the risk profile of that practice. This will in turn give rise to major concerns when viewed in the new and uncertain regime of outcomes-focused regulation.

If this is, in fact, set to be Jackson’s first big test, it looks as if the new regime will indeed, as predicted, ­restrict severely the ability of the ’(wo)man on the street’ to seek justice through the courts for meritorious claims as (s)he has been able to do for centuries.

Is this progress?