J-Day: How’s your hangover?
It is hard to believe that it is already some five months since 1 April, which marked the implementation of the majority of the Jackson reforms. How have things been going? Do we dare to ask?
How have things been going? Do we dare to ask?
There is no evidence yet of a surge of claims following the reforms, hardly surprising given the mass signing up of claimants to CFAs in the period prior to 1 April and the notifications that were sent at that time. Not all of those notified claims will actually be pursued, let alone taken into litigation. We will though surely see an increase in claims notifications over the coming months as we move further away from the hiatus caused by new notifications being brought forward to beat the 1 April deadline.
Offers by claimants under the new enhanced Part 36 regime are being carefully judged. With the extra 10% payable if the defendant does not do better than the claimant's offer, it is as well for the authority and its insurers to be extremely cautious in rejecting such an offer. We are seeing careful evaluation in this way – though of course that does not mean giving claimants a blank cheque.
Everyone is still feeling their way with costs management, but most people are treating this extremely seriously, for fear of falling foul of the time limits if nothing else. Remember that if you fail to file a costs budget on time then even if you win the case you risk ending up with nothing, or at least only be able to recover court fees. In general, parties who do not file their costs budget on time, or at all, would need to apply to court for relief from sanctions if they actually wish to rely on their budget. Parties are avoiding the need to make such applications, in general, as they are getting their budgets in on time. There have been one or two high profile cases, for example Andrew Mitchell MP's claim arising from the "Plebgate" incident: his solicitors failed to file a budget on time, and he was refused relief from sanctions. An appeal decision is likely to come through on this in the next few months.
Otherwise, the enforcement of the supposedly strict Jackson regime seems to be patchy. Our experience, up and down the country, is that some district judges are taking a very firm line, and others are not. However the problem is that you just do not know what is going to happen in an individual case. For this reason, when asking for information or documents, local authority insurance departments may well wish to emphasise to their colleagues, in other departments, the need for strict compliance with time limits, and the problems which can arise where these are not adhered to. Where it is the claimant's solicitors who are in default, rather than the claimant himself or herself, courts are not always being strict about non-compliance: some district judges are taking the view that the striking out of a claim will only encourage a claimant to sue his or her own solicitors, and the courts do not want to see this as they regard it as "satellite litigation". Other judges have accused us of reading the rules too literally, when we try to uphold them! Well we do our best... On the next case, though, we might just as easily find that a district judge comes down hard on a claimant (or their solicitor) who is just a little late with one or other timetable date. Decisions from the Court of Appeal over the months ahead will provide a clearer steer on the correct approach to follow.
The expanded portal arrangements are in place, not only for higher-value motor claims but also, for the first time, EL and PL claims. Some local authorities are receiving their first EL and PL portal claims where the accident has occurred after 30 July. A straw poll suggests that local authority insurance departments are doing well at getting to grips with new procedures, and in training staff to respond to claims, and that they are (as they need to be) extremely conscious of the need to comply with the various time limits. In some cases this has led to closer liaison between the insurance department and other departments, particularly highways departments, which often find themselves on the receiving end of claims. As with the Jackson reforms more generally, and mentioned above, the need for responses in good time, from other departments, is being made known widely. Only time will tell whether this will ensure that deadlines are hit rather than missed.
As far as costs are concerned, the new tighter regime for assessment of claimant's costs has not really had much of an impact as yet. This is something which will become more marked with the passage of time, though. It is primarily the costs incurred by the claimant's solicitors after 1 April 2013 which come under even closer scrutiny than before. As time goes on, we will see cases where those later costs represent a greater and greater proportion of the total work done in any given case.
All in all, it is fair to say that there has been something of a step change in procedure, and my view is that we will continue to see further changes in attitudes and procedures, arising from the Jackson reforms, over coming months and perhaps years. Watch this space for further news.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.