“Frantic” firms creating hump of CFA cases that will take years to clear, says QC

Spencer: enormous effect on NHSLA in short term

The 1 April Jackson reforms start date is creating a “hump” of conditional fee agreement (CFA) cases that will take years to clear the courts, a leading clinical negligence barrister has predicted.

Martin Spencer QC of Hailsham Chambers said claimant firms have been frantically signing up CFAs to beat the end of recoverability of after-the-event insurance (ATE) premiums and success fees.

Speaking last week at a forum on costs and children’s claims held at Pattinson & Brewer, Mr Spencer said that in his experience “in their fear and indeed concern about the future many claimant firms have been signing up to CFAs by the dozen or the hundreds”.

He added: “That also involve signing up to ATE insurance premiums and all the ducks being in a row before 1 April.”

The QC, who specialises in professional negligence, particularly in respect of nurses and doctors, predicted that it would take years for the effects of the rush to clear. “There is going to be a hump of cases which are going to be seen through over the next two or three years.”

In the short term it would have an “enormous effect” on the NHSLA and the amounts it would have to pay out, he said. In the longer term: “We will see eventually the new regime coming through and the impact that has on the amounts paid out by the NHSLA and the insurance companies.”

Mr Spencer described the absence of detailed information on costs until just weeks from the 1 April start date as “really outrageous”. He continued: “It’s only when you look at the detailed provisions and you get into the detail that you are able to start planning for the future properly. The very recent publication of the regulations for a regime which is only just a month away makes it really very difficult for everybody.”

Also speaking at the forum, law costs draftsman Paul Kay of R Costings predicted that after 1 April “bullish” defendants would make “early competitive offers” and lawyers would “have to get a handle on quantum” earlier in the case than they were used to. Cost budgeting represented a “sea change” in the way practitioners work and would necessitate lawyers talking to their opponents about the budget.