Are Jackson reforms working?

We are now approaching the second anniversary of the Jackson reforms brought in back in April 2013, and one has to question whether they are working. Or have they caused unnecessary suffering for firms of solicitors and misrepresentation from the insurance companies in the first place?

Reports over Christmas suggest they have failed.

The whole premise of the changes was due to excessive legal fees being paid by insurers and by introducing the same, the premiums would be reduced. The government and Lord Justice Jackson agreed. The reforms were introduced, yet latest reports suggest premiums are to rise.

My own experience of the reforms is that access to the courts is significantly worse and that is due to the Law of Unintended Consequences. From my own experience very few multi-track cases proceeded to detailed assessment. There had to be a significant difference of opinion or point of law that required judicial input. As such, only circa 5% of multi-track cases troubled the court. I can understand why Lord Justice Jackson opined that the detailed assessment stage was too late for the court to properly intervene to control costs. However, as a result of the change of stance, every multi track case now troubles the court with Costs Case Management Conferences to deal with costs budgets. As a result, waiting time for hearings has increased considerably.

Another change was the introduction of provisional assessments. Don’t get me wrong as I am a fan of these and currently boast a 100% record on these along with successfully being awarded extras for beating my own Part 36 Offers. However, the attitude from some paying parties comments has left me staggered. I have routinely received terrible offers from paying parties and when asked for an explanation as to the reductions the response was that everyone knows judges get it wrong sometimes so take the money or take your chance. I took the chance with a well presented claim and won. Again as a result of this attitude, recourse to the Courts is taking longer. CPR 47.15 PD 14.4 states the court will use its best endeavour to assess the bill in 6 weeks.  In reality the court has not even got round to setting a date for the provisional assessment in 6 weeks. A recent application to the SCCO for a detailed assessment was made in August 2014 and is not being heard until June 2015.

Best advice? Instruct Costs Draftsmen who know there way around the rules and get the best out of the same.


Winter of Discontent

So by now you should have read that Mr Mitchell’s solicitors have to pursue the case and will only be able to recover the court fees for anything covered by their costs budget. What about costs not expected? All is not lost as costs of applications can be summarily assessed in addition.

Will the decision of the Court of Appeal help? Hopefully! Rules are rules. At a recent hearing, a. Defendant who had not filed papers in a timely manner were ordered to attend but sit in silence as a result of their inability to meet court deadlines.

Will the outcome of Mitchell be repeated? Not if budgeting is not adopted wholesale by all local DJs. A number of judges either put the issue off until detailed assessment, or don’t deal with it at all! As it is supposed to be a costs managing step, one DJ has already had two hearings as he was not ready to deal with it at the first CMC over the telephone and then ordered a personal attendance. But are the rules not clear that Costs Management Conferences should be dealt with by telephone? Clearly not.

Then, the issue of agreeing the budget arises. How can these be agreed when the defendant senior fraud partner states that ‘this matter is capable of being dealt with by a grade C, pre-action costs are too high, not allowed medical evidence but they are. Costs of £70k are too high’ etc but there’s of £70k are fine! Sort that out in a hearing of one hour before the aforementioned dj who doesn’t want to deal with a 1 hour case and chooses to send it off for detailed assessment which would traditionally take a day. Oh I forgot – it will be a provisional assessment dealt with in 30 minutes.

In case you are thinking I’m in a bad mood, don’t worry – I’ve had a great week and caught a great school’s rugby match. The future’s bright. Lots of work most of which created by all the rule changes, issues resolved and moving on next year to a new position.

Experienced costs practitioners are a rare commodity so choose the best! Try one unbeaten at court in 2013.