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.
I was talking to a solicitor on Friday and was more than a little surprised to find out he had not yet read the proposed changes to CPR, was not aware of the fact that if you actually are entitled to a detailed assessment, you may get to the end and then have a load more knocked off for good measure, and that you were to be obliged to do a budget in multi track cases?
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As the Jackson Juggernaut rumbles on towards April 2013, things are slowly becoming clearer.
Lord Jackson's Juggernaut
The House of Commons have overturned the amendments to LASPO Bill affecting cases involving children and industrial diseases. The pilot scheme involving budgeting/costs management in Birmingham has been a success. The pilot scheme involving provisional assessment has also allegedly been successful, but one practitioner stated that it was only successful if you were a Claimant! How can that be a resounding success?
For those unfamiliar with the pilot provisional assessment scheme, District Judge Hill, sitting in Leeds and Scarborough County Court has been busy provisionally assessing bills of costs where base costs claimed are below £25,000. Either party can seek an audience with the Judge to say he is wrong, but failure to improve ones position by 20% means costs penalties. It apparently takes the DJ an average of 37 minutes to conduct his assessment, but this is the judge that told me all detailed assessments only need 2 hours and if it doesn’t finish in that time, you know which side he is favouring and so you can sort it out outside. Cheers!
It is expected that this scheme will be rolled out to all courts, so you are then left with the risk of having my favourite judge of recent times who told me he doesn’t like to interfere with the time claimed as no solicitors have time to waste – I managed to persuade him that he was not necessarily wasting time but pondering too long.
The assessment will be based on shorter or more succinct points of dispute and replies are only to be done where it adds something to the equation (or concedes something). I am all for better points of dispute. Countless examples of cut and paste points have passed over my desk over the years. The lastest are 120 pages to a 40 page bill that repeat the same paragraphs on every page. Conduct will be raised as an issue! But if points have to be shorter can we make the point sufficiently for a judge to interpret for the purpose of provisional assessment – particularly when they are untrained/out of date/opinionated/prejudiced etc… As for the replies, these have always been optional and Master Hurst has long advocated they should only be done if they add something so why reinvent the wheel – to stop some courts that have a practice direction ordering there production? So this surely comes back to educating judges, or having some continuity between courts. But where is the fun in that!
Simple solution for all of LJ Jackson’s gripes – enlist the help of costs lawyers! After all solicitors have been doing it as have high court bailiffs, and nobody should argue with them.
- Provisional Assessment Pilot (kerryunderwood.wordpress.com)