Perhaps it is the view from my window of a beautiful spring sky over Salford, but I want to encourage a little more optimism about the future of civil litigation post 1 April 2013. There is so much fear and loathing abroad but whilst there are many causes for concern (see February blog), perhaps clinical negligence litigators, more than most, can look forward to the Jackson Reforms as challenges to meet rather than existential threats.
The current rush to conclude as many CFAs as possible before "J-day" is testimony to the belief amongst many claimant representatives that the landscape after 1 April is bleak and unwelcoming. And yet ...
- Would we really miss ATE insurance? It has introduced very substantial additional cost into the system but for what overall benefit? I suspect that ATE insurers have had to pay out defendants' costs in very cases, and yet premiums are often set at a large percentage of the potential liability and must have cost the NHS a small fortune. For those would miss dealing with ATE insurers, there is still the retention of recoverable premiums for part of clinical negligence work. There will be ATE available for own costs. QOWCS will ultimately simplify costs and reduce the burden of costs in clinical negligence litigation. The days of six figure premiums to cover the winning party's costs are presumably over.
- Why shouldn't the parties know in advance, broadly what the costs of each phase of the litigation are going to be? I would want a detailed estimate of costs before agreeing to building works at my house. I would think it an odd system for the builder to charge me what he wanted at the end of the project and then to have a lengthy court battle about what a reasonable charge should be. And costs are more likely to be paid, in full, shortly after the conclusion of a case: claimants' lawyers should have improved cashflow.
- It is reasonable for the courts and for the state to want to keep some level of control over the costs of litigation and to ensure that they are proportionate. Costs have risen. Lawyers should not be heard to complain if access to justice can be maintained and justice delivered at lower cost. Who can argue against a requirement that a costs budget should be proportionate? Would they prefer the courts to allow disproportionate costs? In most clinical negligence cases the courts will surely trust that specialist lawyers intend to act proportionately and reasonably. The hatchet is being sharpened for lower value mass litigation not for properly conducted clinical negligence cases.
- Delay is a problem which needs addressing. The new "Singapore style" case management approach hailed by Jackson LJ in his fifth implementation lecture, of which the DCJ in Manchester, and I believe other senior judges elsewhere, have reminded local practitioners, may lead to some blood on the floor but the new rules apply equally to claimants and defendants. Indeed the NHSLA is likely to face greater challenges than most claimant firms in meeting deadlines robustly enforced by the courts. If the courts give lawyers and experts the hurry up, that might just be good for clients.
- Clinical negligence practitioners will not have to worry about "The Portal"!
- Yes, success fees are going to be lower and may be driven out altogether by the market (and for barristers the market pressures will be stronger, earlier) but in my experience claimant clinical negligence litigators have always been astute to identify the right cases to litigate. This is not a world of stacking cases high and then settling as early as possible. The great majority of litigated cases have substantial merit. Frankly, if any firms have been losing more than 20% of their litigated cases, I would be surprised if they were still in business by 1 April.
The prospect of Singapore style justice will not fill everyone with the joys of spring. It engenders fear of unremitting, top-down micro-management - a Big Brother approach. And yet if you look at the new rules on, say, relief from sanctions the court is still enjoined to deal justly with the application and to consider all the circumstances of the case. The court administration is just not capable of managing all of the many twists and turns of a clinical negligence case. And the courts will also have to keep in mind article 6 of the European Convention on Human Rights before striking out claims for procedural misdemeanours (not a problem for the Singaporean judiciary!)
For practitioners who conduct clinical negligence litigation carefully, efficiently and professionally the Singapore Spring should not herald the end of the world.
I don't expect clinical negligence practitioners to embrace the Jackson Reforms, but rather than the two-fingered salute many seem to be giving them, perhaps we should at least try a respectful and firm handshake and then, together with the courts, try to make them work.