The implementation of many of Lord Justice Jackson’s recommendations took place on 1 April 2013, appropriately April Fool’s Day. The changes represent the biggest change to civil litigation procedure in England and Wales since 1999 when the Civil Procedure Rules were introduced. They have been updated and modified as time marches on, as indeed is the Common Law, which is an ever changing, constant, adaptable beast. By far the biggest impact will be on personal injury claims although the changes will impact on all types of litigation. In summary the key changes are:
- A ban on referral fees;
- Under funding arrangements success fees and after the event insurance premiums are no longer recoverable where the arrangements are entered into under conditional fee agreements (CFAs) after 1 April 2013; there is a limit on success fees;
- A 10% increase in general damages in contract and tort claims for non-pecuniary loss decided after 1 April 2013 (except where the Claimant has the benefit of a CFA with a success fee);
- A new costs management procedure for multi-track cases (generally claims over £25,000) started on or after 1 April 2013;
- A new test of proportionality for recoverable costs;
- An additional costs sanction (equivalent to 10% of the value of the claim) payable by Defendants who do not accept a Claimant’s Part 36 offer which is not beaten at trial;
- Standard disclosure is no longer the default for multi-track claims (except for personal injury cases); there is now a menu of disclosure options
- The Court has new powers to control witness evidence by giving directions to identify or limit the issues for witness evidence, to identify witnesses and, to limit the length of witness statements; and
- Amendments to the Rules on granting relief from sanctions for breaching Rules or Court orders, imposing a stricter approach to compliance.
In addition the fixed fees which are recoverable in Road Traffic Accident claims will soon be substantially reduced, and fixed costs extended to cover more claims. On the government’s own assessment, Claimant solicitors’ income will reduce by about £200 million. Another change is the increase in the Small Claims track limit from £5,000 to £10,000. The general principal in small claims tracked cases is that legal costs are fixed and limited to a maximum of £80.00 so it is often disproportionate in terms of costs for a party to have solicitors act. It encourages litigants to act in person. It may now be possible to obtain a damages-based agreement if you are willing to give up part of a party’s damages if the party is uncomfortable about bringing the claim itself. Typical high street practices have had to change and adapt as the law changes and adapts. TSP is very fortunate that we have a strong and loyal client base. We are the only local firm to do publicly-funded Clinical Negligence cases and of the 16 members of APIL in the Colchester area, 12 are at TSP. The changes have been made to reduce the perceived “litigation culture”, but will severely restrict those who have suffered an injury through no fault of their own from being able to find someone to fight their corner as costs are squeezed. We are also fortunate to have a strong Dispute Resolution team whose members deal with disputes other than personal injury claims and clinical negligence cases.