December 2019 blog for Claims Magazine
For better or worse, the result of the general election means that we now know where we are going with civil justice reforms. But, there remains more questions than answers.
The Civil Liability Act reforms will go ahead, although there now seems near-unanimous agreement from all sides that the April 2020 deadline is not achievable. The rules are still to be published and several key questions about the portal and the process still remain unanswered.
Although we can’t completely rule out implementation in April 2020 and everything being in place in advance, if there is any delay I would not expect a huge lapse—October 2020 is the most likely, April 2021 at a dubious push.
One of the most troubling questions is whether the Ministry of Justice (MoJ) will actively seek to inform the public about the change. Will it invest in a public information campaign? Or will the government leave injured people to stumble around the internet, shocked to find that they are being encouraged to run their own claims?
This will also have significant implications for law firms’ marketing strategies. Our experience shows that people search for generic injury terms and so, solicitors could find themselves attracting large numbers of enquiries that they are no longer able or willing to deal with. How can they most efficiently deal with these?
And, how long before stories of injustice start to emerge?
On 6 January 2020, we can all celebrate the third anniversary of the whiplash consultation closing. While the MoJ took just seven weeks to publish its response to the first part of the consultation, we still await its response to the second, covering issues such as credit hire and rehabilitation.
The wait is becoming embarrassing, but the MoJ—like the rest of the government—has been too busy with Brexit to deal with much else, and this is hardly a priority for ministers having done the ‘headline’ work of the whiplash reforms. Will officials have more bandwidth post-Brexit? We can but hope.
Beyond whiplash, we can expect the MoJ to press ahead with its plans for greater use of fixed recoverable costs in most types of litigation worth up to £100,000. Might it and the Department of Health and Social Care also take up the challenge of fixed costs in clinical negligence cases worth up to £25,000, after the Civil Justice Council working group they charged with agreeing figures admitted defeat in October (although it made recommendations on process changes)?
The group published the numbers put forward by the claimants and defendants blocks among its members and passed the issue of resolving the differences on to the government. Claimant lawyers would not have high expectations of ministers coming down on their side.
One move that would be welcomed—and requires the Master of the Rolls, and not the government, to take action—is a review of the guideline hourly rates. These are used by the courts as baseline figures when assessing lawyers’ costs and have not moved since 2010, despite rising overheads. They are overdue an increase.
The Conservative manifesto did not say much about civil justice, it is fair to say, except to indicate that the Human Rights Act and “abuse” of judicial review would be under scrutiny.
There is also the promise to set up a Constitution, Democracy & Rights Commission in the government’s first year “to look at the broader aspects of our constitution”, including “access to justice for ordinary people”.
What might this mean? Only time will tell, but I suggest it would be good for all of us involved in the claims world—from whatever side—to have a period where we don’t have to prepare for and worry about the next round of reform, and can just make sure that we are doing our best for those who are injured and in need of help. After all, isn’t that ultimately what we’re all trying to achieve?
