The Mitchell ruling may have provided a “degree of certainty”, but practitioners still require “a lot more clarity” on costs budgeting and areas such as qualified one-way costs shifting (QOCS), the new president of the Forum of Insurance Lawyers (FOIL) has argued.
David Johnson, a large loss litigation partner at Weightmans, said nervousness around relief from sanctions had already driven a lot more compliance; the Mitchell ruling “represents the stick that people had feared was there and will continue to drive change”.
But there were plenty of outstanding questions around budgeting, such as how the courts are going to react to applications to amend budgets, and ultimately how rigidly the courts will enforce them at the end of the case.
On QOCS, he said, practitioners are still waiting to learn more about what constitutes ‘fundamental dishonesty’ such that the claimant loses their costs protection, and also the interaction between QOCS and part 36.
More generally, looking ahead to his year in office, he said: “FOIL will be forthright in presenting the defendant insurer lawyer perspective but I’m keen to make the most of opportunities to work with organisations such as APIL and MASS to collaborate where possible to achieve sensible and effective reform.”
He highlighted co-operation around fraud prevention and the new whiplash medical panels as recent examples of where this has worked.
Mr Johnson, who was previously at Vizards Wyeth, has been a lobby officer for FOIL and served on its national committee for four years. Though there is continuing consolidation among defendant insurance law firms – a process he predicted “will be replicated to some extent on the claimant side” – the solicitor was confident that FOIL would still have a role to play in providing a united voice.
“The organisation is much stronger than it has been, and over the course of the last five to six years it has changed itself into a much more professional and effective body.”
He said giving evidence in person to a parliamentary select committee for the first time – over whiplash reform – was a “good measure” of this.
“Generally the engagement we see with the Ministry of Justice, Civil Justice Council and organisations of that nature is demonstrative of us being seen as having a serious voice.”