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And so it begins

Posted by Neil Rose, Editor, Litigation Futures

[1]

Survival of the fittest – the new motto for PI lawyers?

So here we are at last, nearly five years since the then Master of the Rolls, Lord Clarke, announced his intention to launch what turned out to be the Jackson review (a story I broke, if I can be allowed the immodesty of mentioning it). It has certainly had its ups and downs since then, the biggest up undoubtedly being the 2010 election result, without which Sir Rupert’s report may well still be lying in the long grass.

It is moot now for those on the claimant side to look back and wonder whether anything more could have been done to prevent what they would consider the worst of the reforms. But I will, for one last time, dwell on it in light of the recent ‘Save the Legal Industry’ campaign [2], headed by well-known Manchester personal injury solicitor Martin Coyne, a subsidiary part of which has been to call for heads to roll at the Law Society for failing to stand up for the profession.

I have long felt that the Law Society has been far more visible on the legal aid part of LASPO than Jackson, and it has thrown more internal resource at it too. This is a highly sensitive subject for Chancery Lane, which is why it has recently been highlighting its work and achievements over Jackson given the much higher profile efforts of APIL and MASS. Of course it is impossible to determine if any one particular body was responsible for such concessions as were won, and so let us put these claims to one side.

The society would say that it undertook a lot of work behind the scenes which the profession did not see, which no doubt it did (although being quiet about such things is not the Law Society’s usual style) – indeed some of the feedback I’ve had about Martin Coyne’s campaign is that it is ‘unhelpful’ for the continuing behind-the-scenes negotiations over the whiplash reforms. But then behind-the-scenes activity hasn’t been a roaring success to date, so let’s not get too worked up about that either.

All I can say is that from my perspective as an external observer, APIL and MASS seemed to run more dynamic and determined campaigns (equally, it is fair to note that they didn’t have to worry about legal aid).

The odds are that nothing could have changed the course of government policy but my criticism of all the groups – not just the Law Society – is that the best chance they had was to present a united front. Instead they all went it alone and only came together at the death of the bill’s passage through Parliament, by which time it was far too late.

I think most involved would agree with this, and I have never got to the bottom of why it didn’t happen; policy nuances may have seemed important from within but perhaps ignored the bigger picture. Somewhat more than a nuance was the Law Society’s support for the referral fee ban, while its general desire always to have the lead role probably didn’t help (it has been similarly criticised for how it conducted its legal aid campaign alongside the large Justice for All lobby).

I’ve written several times before of my incomprehension that the society didn’t see the RTA portal fee cut coming straight behind the ban (and if it did, it wasn’t acting in the interests of many thousands of members by pressing for it – the society, let’s not forget, is now a representative body) and that its submission that the fee should go up rather than down was totally unrealistic.

But that was then and this is now. The long tail of recoverability caused by the mad rush to sign up to clients to CFAs and ATE before Monday means that the full impact of the reforms won’t be felt fully for some time; it is the portal fee cut that will hurt first and worst.

So what can we expect now? Satellite litigation is clearly part of the future, such is the unsatisfactory nature of the CPR amendments as highlighted by the likes of Kerry Underwood and Simon Gibbs. Already there is talk of challenges to the reasonableness of solicitors signing up CFAs and top-up ATE in the last few weeks. Will the Court of Appeal take the firm lead promised by the new MR, Lord Dyson? It will need to rule less ambiguously than it did in Henry, that’s for sure. Hopefully Lord Dyson himself will sit in those cases; it was a surprise he didn’t in Henry.

Further, will his speech to the District Judges’ Annual Seminar [3], warning of a low tolerance approach to non-compliance with rules, directions and orders, translate into action? It will certainly be a nasty shock if so, recalling the experience of similar reforms in Singapore and Malaysia. In the latter, I’m told, the chief justice would personally call lawyers to gee them up. Imagine being told Lord Dyson was on the blower about your failure to comply with a part of the CPR you had forgotten even existed?

But it is not lost on most observers that had the courts, over the past 14 years, used the powers that they had in the CPR to sanction non-compliance, rather than let it slide, we wouldn’t have needed the Jackson review. Amidst the lecturing, let’s not absolve the judiciary of blame for the state litigation has got into, which Lord Dyson kind of admitted in his speech. And the lamentable lack of judicial training is also of great concern.

So there will be a degree of chaos and more than a degree of uncertainty, and I certainly expect to have plenty to write about. But is this the end? For some, such as PI firms unable to adapt to the referral fee ban or ‘kitchen table’ costs draftsmen who have seen their traditional work go up in smoke, very possibly. Yet I suspect many will find a way to go on, at least for now.