A leading claimant law firm has challenged the government’s constitutional right to lay down policy on the new post-Jackson protocols, amid a raft of concerns raised about the scheme’s implementation by stakeholders.
Among the concerns, the Chartered Institute of Legal Executives (CILEx) warned that the tight timescale for extension of the portal scheme threatens to undermine the amended pre-action protocol and draft protocols for employers’ liability and public liability (EL/PL).
Further, a top insurance defendant firm criticised the draft protocols for having anomalies that needed removing to prevent satellite litigation and a claimant lawyers’ group condemned the consultation on the changes as “piecemeal”.
Responding to a limited Civil Procedure Rule Committee (CPRC) consultation on the changes, launched in October by the Master of the Rolls, leading personal injury firm Thompsons objected to his statement that aspects of the protocols were not open to adjustment. Lord Dyson said the level of costs, the exclusion of certain claims from the scope of the protocols, and the response period within stage 1 of the protocols, were government policy and so not up for grabs.
There is “no statutory or other basis” for the government taking precedence over the CPRC, the firm argued. “This is a constitutional issue of fundamental importance. It raises questions as to the independence of the courts from government, particularly on matters of procedure before the courts.”
CILEx said the protocols and the scheme itself could be undermined by the government’s “rushed implementation”, which will “compromise the process”. Lord Dyson’s statement had not included a guarantee that the technology underpinning the scheme would be ready by the April 2013 start date.
Unless the IT system is “fully functioning” by then – which many practitioners consider unlikely – the protocols “will not deliver the objectives or efficiencies envisaged in the extended scheme”, it argued.
Equally, said CILEx, the “timescale is too short for stakeholders and lawyers (whether claimant or defendant) to adapt their business models to cater for this significant change”.
It said the protocols were “clear and easy to follow” but if they were to work judges would need to use case management powers in a “robust but fair way”. Further, the burden on a litigant in person “appears to be disproportionate and may bring equality of arms issues”.
Defendant firm Kennedys praised what it said was the government’s “commitment to a more streamlined system”.
But partner Tracy Head, an EL/PL claims specialist, also said an extension of the scheme to EL/PL claims should not happen until the consequences of exiting the portal were dealt with: “The protocols need to ensure that any potential loopholes to easily bypass the portal are closed and that corresponding costs consequences apply and are fair.”
She added: “The draft protocols currently appear to contain a number of anomalies or difficulties which need to be resolved in order to avoid satellite litigation. Provisions around medical evidence need to be considered closely, in particular.
“For example, the proposed expectation that medical records will not be required in RTA claims below £10,000 is not repeated in the draft protocol for EL/PL claims… In reality… it should be expected that the medical experts will need to see the claimant’s medical records in all cases.”
The claimant lawyers’ body that lobbied hard against the Jackson reforms during passage of the Legal Aid, Sentencing and Punishment of Offenders Bill, the Access to Justice Action group (AJAG), complained that the consultation on protocol changes was “being carried out piecemeal”.
Noting that it opposed the extension of the portal to higher-value RTA cases and EL/PL in any case, the AJAG coordinator, Andrew Dismore, said it was hard to comment without access to all information on the reforms, such as the awaited new claims notification form.
In detailed criticism of the EL/PL protocol, the group challenged the definition of disease as excluding illness as a result of an accident. “This needs rewording,” it said. Also, multiple defendant claims should be outside the scope of the protocol