Lord Justice Jackson’s Report on the Costs of Civil Claims

In his long awaited report, Lord Justice Jackson made some far-reaching recommendations in relation to personal injury claims generally. The report is now being considered by the key bodies affected, and the industry holds its breath to see if and when LJ Jackson’s recommendations are implemented. His key recommendations require changes to existing legislation, which are likely to take some time. Other recommendations in his report, such as the formation of a Costs Council, could be taken forward more quickly, should they be carried out.

In relation to all personal injury claims, LJ Jackson puts forward a system of qualified one way cost shifting in order to reduce costs generally. This would mean that, subject to the reasonable conduct of the Claimant, if his case fails, he would not need to pay the Defendant’s legal costs. However, should his claim succeed, then the Defendant would remain liable for the Claimant’s legal costs. This removes the huge financial risk taken by Claimants when they undertake a legal claim. Currently, the losing party has to pay the winning party’s costs, therefore, a Claimant is at risk of having to pay the Defendant’s costs in the event that the claim is unsuccessful. To provide protection to the Claimant, prudent solicitors recommend taking out a policy of insurance for the Claimant. That way, in the event that the claim fails, the insurer will intervene and meet the Defendant’s legal costs for which the losing Claimant is liable.

Under the new system proposed by LJ Jackson, the risk to the Claimant of having to pay the Defendant’s costs in the event that the claim is unsuccessful would be removed and there would be no need for insurance to be taken out by the Claimant to protect them against this risk. It is the need for this type of insurance, which has substantial premiums, that LJ Jackson recommends is removed. However, the position is not entirely clear on how Claimants would protect themselves from costs orders made against them on the basis that the court decides that their conduct is unreasonable and that they should still be liable for the Defendant’s costs. The exception of the unreasonable conduct of the Claimant is likely to be an area to be explored by case law, as Defendants will certainly wish to raise this where possible in an attempt to recoup their costs in cases they have successfully defended.

LJ Jackson’s findings specifically regarding the specialist area of clinical negligence claims do make interesting reading, in so much as he acknowledges the different influences that apply to clinical negligence and in particular, the sheer amount of expert evidence that needs to be adduced to bring, and defend a claim. Expert medical knowledge is required at every stage of the process, which makes such claims inherently expensive and lengthy. To try to reduce costs in these circumstances is more about streamlining the existing system, whilst retaining the basic structure. Without expert evidence, there is simply no guidance on the medical standards appropriate to any particular case, by which it can be decided that treatment is or is not negligent.

LJ Jackson makes the useful recommendation that there is often a delay before medical records are provided, which appears to be largely down to a lack of co-ordination in the medical records departments of Trusts. He proposes that after the usual 40 day time limit for records to be provided has expired, there should no longer be a fee payable for the records, and after 60 days, the Trust would face a fine. Whilst the amount of the fine will be decided at a later date, this is a very important step. Trusts are motivated by targets that are driven by financial incentives, and any area of a Trust that may be liable to pay fines in relation to the numerous records requests received daily, is very likely to have heavy investment to ensure that fines are avoided. This is a very welcome recommendation that will in turn save time and money when investigating clinical negligence claims, in line with LJ Jackson’s aims.

If you would like to discuss any circumstances where you feel that an injury was caused as a result of medical treatment that you think may be negligent, please contact specialist clinical negligence solicitor Suzanne Trask on 0207 288 4834 or email. Please be aware that strict time limits apply to claims which if missed, could result in you losing the right to claim compensation, therefore legal advice should be taken as soon as possible.

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