2020 Predictions – Radical reforms are coming!
Professor Dominic Regan

The final instalment of the Jackson jigsaw will be delivered with a drastic extension of fixed costs. Sir Rupert set himself the challenge of devising a regime where Justice could be delivered at proportionate, reasonable cost. It was a decade ago that his interlocking measures were revealed.

To that end he decided that a fixed costs regime should apply to lower value cases. Whilst such costs have been introduced in personal injury, mainstream litigation has been left untouched. That is going to change. In July 2017 recommendations were made by Sir Rupert which the Ministry of Justice only responded to last year. Matters worth between £25,000 and £100,000 would have Costs determined by reference to a matrix. Out will go costs management at the start of an action and detailed assessment would fall away at the end. Cases would be allocated to one of 3 bands, each one having a scale of costs that would understandably increase as the matter progressed. A claimant making a good Part 36 offer will get a 35% uplift on their tariff costs.

Allocation would be determined by the complexity of the claim. The least remunerative band 1 would apply to “bent metal” vehicle damage cases. The top band would be right for a professional negligence claim such as against an architect. Public and Employers Liability would reside in the middle. Not all matters will be captured. Clinical negligence and other complex disputes will be unaffected.

In June 2019 the Ministry of Justice expressed support for reform and I consider it a certainty. The Department intimated that by early September last year definite proposals would be announced. We are still waiting but the end of the Brexit battles should clear the way for reform within 15 months.

Whilst Parliament has legislated to increase the personal injury small claims limit, I think changes will not be in place by the stated target date of April 2020. Later this year or even early 2021 are the realistic possibilities.

Last October Nicholas Bacon QC and Professor Rachael Mulheron jointly unveiled proposals to reform the Damages Based Agreement Regulations. The underlying concept is sound; let Solicitors litigate in return for a percentage of the sum they recover. Jackson was in support but the MOJ thwarted him by inserting Rules inconsistent with his carefully crafted recommendations. The big obstacle is a ban on hybrid agreements which means that the solicitor bears all risk whilst the client bears none! One cannot charge them anything in the event of failure.

The proposals would reverse this. Given that the risk shouldered by the Solicitor would diminish, the maximum cut recoverable would drop from 50% to 40%. The amendments would allow one to act in a claim, as now for money, but also for money’s worth. The example given was a tussle over title to a Renoir. Whilst not a liquid asset, it undoubtedly has a significant value. One could agree to take a reward calculated as a percentage of that value.

Alex Hutton QC has rightly observed that the status of these proposals is unusual. They have not been produced as a result of any Government initiative. Nevertheless, the Ministry of Justice did turn up mob handed and participated at the launch event. I can tell you that the proposals have the full support of Sir Rupert. We must wait and see what transpires.

A recent review of the witness statement Rules should go nowhere. There is absolutely nothing wrong with the 1992 Rules. Complaints about length and content are a result of a small minority of pettifoggers who regard compliance with the Rules as an optional indulgence. There is no place in a compliant statement for rambling rhetoric or legal submissions. The solution is simple. Non – compliant statements should be struck out with the witness debarred from adducing any further material.

Looking at the litigation sector it is clear that things are thriving. Mike Goodridge, majordomo at 9 Gough Square, tells me that his set is moving to much larger premises this year on account of insatiable demand. Things are as healthy as ever and I do not see no evidence of work tailing off.

Mid-January sees the first Court of Appeal hearing about Part 36; it will certainly not be the last.

We have in the pipeline Supreme Court judgments in the 2 vicarious liability cases involving Morrisons and Barclays Bank respectively. I predict one appeal will succeed and one will fail. The judgments will represent the swansong of Lady Hale.

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