The civil justice system’s current preoccupation with procedural issues could encourage major personal injury (PI) firms on both sides to reach agreements to arbitrate and bypass the courts altogether, it has been suggested.
Speaking yesterday at a Westminster Legal Policy Forum event on the Jackson reforms, Rod Evans, immediate past president of the Forum of Insurance Lawyers, said the suggestion was made to him independently by a number of senior barristers and solicitors following the Mitchell decision.
He said: “I think we are certainly going to be looking at avoiding court proceedings and going to arbitration because there is a feeling that, as things stand, with the litigation that is going on around procedure rather than getting on with the case, arbitration may be a better route to go down.”
Mr Evans said there was a feeling the judicial system was “not fit for purpose” in the wake of Mitchell. Further, “inconsistency” with the decision’s application meant “we haven’t got a clue what we’re doing”.
Because there was consolidation in the PI market, it would be possible for leading claimant and defendant firms to “agree a set of arbitration rules”, he said.
Other contributors spoke of upheaval since Mitchell. Senior Costs Judge Peter Hurst told the conference it had had the consequence that “the court now finds itself swamped” with applications to extend time, leading the Civil Procedure Rule Committee to consider a “buffer order” that would give parties time “to reach sensible agreements”.
He added: “If Mitchell is going to be applied to the letter, that is really going to cause a lot of problems.”
Matthew Harman, a former chairman of the Association of Costs Lawyers, said the Mitchell approach of “treating human error as a capital offence” had created a “culture of fear” among the practitioners who instructed him. It was problematic because “for litigation to proceed successfully, there has to be an element of common sense pragmatism, a little bit of give and take between competing lawyers”.
He asked: “One of the recurring themes in the Jackson report is proportionality. Where is the proportionality in the sanctions which have been applied in the myriad of cases since Mitchell?”