13 February 2013Print This Post

Action stations as JR date, new CPR and discount rate consultation are all published

Tonks: government should stop, review and take stock

The judicial review over the government’s proposed cut in RTA portal fees will be heard on 1 March, it emerged yesterday amid a flurry of developments.

As reported on Tuesday, the High Court has ordered a ‘rolled-up’ hearing of the action brought by the Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society.

This means that both the permission hearing and the substantive hearing will be held together, which some are interpreting as a signal that the court will grant permission. At the same time, the court frequently takes this approach in high-profile judicial reviews.

There is speculation that the government will announce its plans for portal extension and the final portal fee by the end of this month, and so before the hearing.

Speaking yesterday at the APIL president’s annual luncheon, current incumbent Karl Tonks called on the government to “stop, review and take stock” of what it is doing with its reforms – including what he called the “lazy and reckless” move in the Enterprise and Regulatory Reform Bill currently before Parliament to abolish a worker’s right to compensation for breach of health and safety regulations; instead employees will have to prove that negligence has occurred.

“The government has already shown that it can listen and respond to concerns in relation to reform of the GCSE exam, and it needs to show the same willingness to listen in relation to civil justice,” Mr Tonks said. “It would be irresponsible and wrong to reform and change in haste and then force injured victims to repent at leisure.”

Following the Civil Procedure Rule Committee meeting last Friday, the government has now laid a statutory instrument, containing the revised CPR, before Parliament – no revised practice directions have been published yet, however. Download the rules here: Civil Procedure (Amendment) Rules 2013.

The new rules finally give lawyers and insurers sight of the provisions on qualified one-way costs-shifting at rules 44.13-17. They make it clear that any order against a claimant can only be up to the amount of the damages awarded, and lay out when the court’s permission to enforce an order will be needed and when it will not. Permission will be required where “the claim is found on the balance of probabilities to be fundamentally dishonest”.

Uncertainty as to what constitutes fundamental dishonesty is seen as likely to lead to satellite litigation – for example, would a claimant who is found to have exaggerated one aspect of his claim be caught?

Finally, the Ministry of Justice published the second part of its consultation on whether to change the discount rate. Having last year consulted on the methodology for setting the rate, it is now seeking views on the legal framework.

It focuses on whether the legal parameters defining how the rate is set “produce a rate this is as ‘right’ as it ought reasonable to be so that the person injured is fully compensated but not over-compensated or under-compensated”, and whether there is a case for encouraging the use of periodical payment orders instead of lump sum payments.

The rate is currently set by reference to the expected rates of return of index-linked government stock as a safe investment, but the consultation paper said initial evidence indicates that instead claimants invest in mixed portfolios, including higher-risk investments.

“This may be the result of a number of factors, but it might suggest that the current legal parameters for setting the rate may produce a rate that is too low.”

The consultation closes on 7 May and can be found here.

By Neil Rose

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