It’s been a decade since deep budget cuts to legal aid and subsequent controversial reforms came into force affecting civil justice. Personal injury (PI) and clinical negligence were areas that lost most public funding, which went hand in hand with the Jackson reforms. 

What did the Jackson reforms mean for PI and clinical negligence? 

Good question. The Jackson reforms had a huge impact on PI and clinical negligence claims. Most notably the reforms:

• Ended recoverability of the success fee attached to CFAs (Conditional Fee Agreements) meaning this could no longer be recouped from the losing defendant 
• Introduced case management and costs budgeting 
• Introduced qualified one-way costs shifting (QOCS) which provided some protection for claimants against an adverse result

Our colleague, Director and Joint Head of Personal Injury and President of APIL, John McQuater joined discussions with leaders from other law firms and third parties to understand where we are now, 10 years on from these changes. You can read the full article on page 20 of the Law Society Gazette.

For many law firms, some adaptations to their practice and how they conduct claims were made post Jackson reforms to ensure it was business as usual. The loss of legal aid in personal injury cases and most clinical negligence claims meant claimants and law firms were exposed to carrying large disbursement, also known as out of pocket costs. Relationships with third party insurers and medical agencies were strengthened to ensure access to justice could still be achieved with funding terms agreed so claimants could still bring a claim. 

The loss of legal aid also meant that law firms became stricter with their screening process. This was twofold:

• To make sure it was proportionate to take on a claim and
• To make sure it was likely to succeed – some firms were more stringent in their process than others

What the courts have found since the Jackson reforms is that there’s been an increase in litigants in person. The disadvantage of this is that many claims are unmeritorious, and the courts are struggling with listings as a result.

What do law firms attempt to achieve in continuing with these work types ? 

We know that 100% restitution isn’t possible for claimants.  However, rehabilitation and support are definitely achievable in the right hands. Over the years the appellate courts have focused on making sure a claimant is compensated to where they should have been if they hadn’t been injured. No more, no less. 

Cost implications – what are they?

Sadly, costs are always a big factor in any case, which can make litigation seem like a game.

There have been some issues with costs budgeting, with most cost judges not being experienced enough in litigation costs and often not having enough time to consider all arguments for the proposals made. Proportionality is always part of the overriding objective – that is, what’s the compensation awarded compared to the costs of bringing the claim in the first place? However, despite these issues, lawyers have become more cost aware in the last 10 years and case law has developed to make sure that they have to be. 

Legal aid does still exist for some exceptional cases with limited eligibility, namely those who have suffered a neurological injury within the first eight weeks of life. However, the rates paid to medical experts haven’t continued in line with process increases and the limits haven’t been altered for over 10 years. This means finding the right expert can be extremely difficult. The number of experienced experts willing to work for the rates paid through legal aid is shrinking. Many will do it for social responsibility, but this is definitely changing and will impact on whether legal aid can be used on these cases going forward. For these complex and difficult cases, it’s imperative that there continues to be access to the right experts.

The QOCS principles, which initially protected a claimant, have recently changed, placing the claimant lawyer at risk if there’s a failure to settle the claim in a timely way after an offer is made. Of course, in larger cases this will have an impact on whether the settlement is the right amount. This places a lot of pressure on the lawyer by having to predict whether the compensation will be enough for the remainder of the claimants life. This needs to be navigated carefully to avoid sanctions on the claimant. Some have suggested that periodical payment orders (PPOs) could be the answer to this. Only time will tell.

It will be interesting to see what happens as society evolves and the implications of law reforms continue. At Switalskis we continue to ensure that we have the tools available to us to always ensure we’re able to do the very best for our clients to provide resolution and rehabilitation for our clients.