The Association of Personal Injury Lawyers (APIL) will next week launch a final attempt to challenge the Jackson reforms by setting out a new negotiating position that drops outright opposition to the changes.
However, while the Law Society said the proposals deserve “serious consideration”, another claimant lobbying group attacked APIL’s move, while defendant lawyers rebuffed any suggestion of compromise over the Legal Aid, Sentencing and Punishment of Offenders Bill.
APIL is currently consulting with its 5,000 members over a package that would see fixed recoverable success fees – ranging from zero if a binding admission is made in the protocol period to 50% at trial – non-recoverable after-the-event (ATE) insurance premiums, the bid to introduce qualified one-way costs-shifting (QOCS) abandoned, and legal aid retained for clinical negligence work.
The APIL executive committee will finalise its proposals next week before taking them to the Ministry of Justice and defendant insurers and lawyers.
Chief executive Deborah Evans said APIL had always planned to reflect on what happened during the committee stage of the bill’s progress through the House of Lords before setting out “a sensible alternative” to float at the report stage, which is scheduled for early March.
While still opposed to the reforms in principle, Ms Evans said APIL was taking a “realistic” view of the prospects of securing wholesale changes. “I hope [the proposals] are sufficiently aligned with the government’s intentions to be given serious consideration.”
Making ATE unrecoverable rather than success fees meant claimants would only suffer “one hit, not two”, while creating a competitive ATE market where prices will go down and so reducing the portion of a claimant’s damages that will be eaten up by the premium. She said the ATE market is currently a “false” one because recoverability means there is no pressure on prices.
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The government seems entrenched in its current position, but Ms Evans said APIL’s ideas offered a way out of QOCS. “Everyone recognises that QOCS doesn’t work,” she said. “There has been a deafening silence from the government on [how it will operate].”
Law Society chief executive Des Hudson said: “The government appears determined to force through changes. Blunt opposition seems unlikely to halt the reforms so the Law Society has been considering pragmatic alternatives. For several months the society has been working behind the scenes with other stakeholders to discuss possible ways forward.
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“We remain opposed in principle to the government’s changes but alternative proposals from APIL deserve serious consideration. We look forward to serious discussions with government and the insurance industry.”
However, Nigel Muers-Raby, chairman of the anti-Jackson lobbying group the Consumer Justice Alliance, expressed “grave concerns” at both the content and the timing of the compromise.
He argued that it would leave the injured victim “in a worse position than do the Jackson proposals”, while “its circulation and use at a time when the Lords are showing such strong opposition to the bill is little short of catastrophic”.
In an open letter to Ms Evans, he said the alliance particularly opposed the attempt to reach a common position with the Association of British Insurers and the Forum of Insurance Lawyers (FOIL).
In any case, FOIL chief executive Laurence Besemer told Legal Futures: “There is no need for a Plan B – Plan A will deliver both a sustainable and balanced civil justice system and the government should stick the course on these reforms.
“There are no divisions in the defendant camp and our position is clear – that the Jackson reforms, provided that they are brought in as a package and at the same time, as Lord Justice Jackson intended, will deliver access to justice for those that want it and bring proportionality and balance back into the system, to the benefit of wider society. There is simply no credible evidence of risk to innocent victims.”