There is a case to extend qualified one-way costs shifting (QOCS) to actions against the police and ‘follow-on’ professional negligence cases over failed or under-settled personal injury claims, a Civil Justice Council (CJC) working group has concluded.
However, a report published yesterday said it would ultimately be a matter for government to consult on and decide whether to take forward either or both.
The group, chaired by Alistair Kinley of insurance law firm BLM, initially had a broader brief to investigate the implementation of the Jackson reforms – following on from a conference the CJC held in March 2014 – but it was slimmed down in the wake of transitional issues around conditional fee agreements starting to appear before the courts, and the Ministry of Justice consulting on costs protection in environmental cases, although the outcome of that has still to be announced some seven months on.
In his report, Lord Justice Jackson had identified actions against the police as one area where QOCS may be appropriate because of the “asymmetric relationship” claimants usually had with the defendant force.
Such a move was strongly supported in submissions to the working group by the Police Action Lawyers Group, which said that the loss of recovery of after-the-event insurance created “an insurmountable barrier to access to justice” for claimants who did not qualify for legal aid.
Though the working group struggled to get an opposing view from police lawyers, despite several attempt, it concluded that there were “strong, if not compelling, arguments of principle – based on access to justice and on the asymmetry of the relationship between the parties – weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police.
“Principled arguments for not doing so do not appear to have been made out.”
The working group said that the arguments for extending QOCS to follow-on negligence claims were not put forward by an organised group in the same way as with police claims, but it highlighted work done by Professor John Peysner in research prepared for the 2014 event.
In it he said that by not having QOCS, the claimant was potentially injured three times: “once in the accident, twice in losing compensation and thrice in being deprived an effective remedy against incompetence”.
Professional indemnity insurers argued that the present costs regime did not appear to impact adversely on access to justice for several reasons, including that most claims settled within the pre-action protocol. Also the question of liability was often clear as not issuing within the limitation period was the most common error.
The working group concluded that there was a “fair” argument of principle that would support the extension of QOCS in follow-on claims.
However, it added: “The practical points raised against doing so, and in particular the risk of a secondary market in these claims, may be thought to carry some weight in the present environment.
“The decision whether to take matters forward is a matter for government. If it were minded to do so, specific proposals and an impact assessment should be prepared. Should matters progress… the availability of other routes for either funding these claims (such as BTE insurance) or for resolving them (such as schemes operated by lawyer associations) should be investigated.”
The working group said the CJC would be prepared to assist in whatever way might be thought appropriate were the government to press ahead with either of these recommendations.