Politics & Jackson

The ink is hardly dry on the Jackson Report on the civil costs regime and the government is already moving swiftly on one of the recommendations. This may indicate that the political willpower is there to put into effect other recommendations made in the report. The political world, however, is not that simplistic or indeed reliable.

In moving forward, Jackson LJ, who is going to head up the momentum for change, should not place too much reliance on politicians to deliver the ends that he seeks to achieve. Much, of course, can be achieved without such support and the way forward may be to take a view that it may simply not be there. Looking to the immediate stakeholders, including us, the practitioners, may prove more productive than relying on the political world which marches to a very different agenda.

Jackson LJ issued his report on 14 January. The Ministry of Justice published its proposals on the reduction of the success fees on conditional fee agreements for publication proceedings on 19 January. To say that that was a quick response would be underestimating the work that goes into the preparation and publication of a consultation paper. One might assume that this was a work simply awaiting the green light that the Jackson Report gave it. 

Freedom of speech

Publication proceedings are currently a hot political subject. One does not need much political nous to understand the possible driver behind this earnestness on the part of the government on this issue. Clearly freedom of speech is a central tenet of a democracy and it should be protected. As the consultation paper confirms, however, this is not a new issue. It has been with us since the introduction of recovery of the success fee and the after the event (ATE) premium. 

The political desire of the secretary of state to deal with these issues is reflected not only in the speed with which this paper has been published but also in the shortened consultation period of just four weeks against the usual 12. 

It remains to be seen whether any legislation will be introduced prior to an election but a government of any colour is likely to follow it through with the required changes restricting the uplift on conditional fee agreements for publication proceedings. 

The proposals now being made are explicitly said to be interim measures while the government considers Jackson LJ’s recommendations for the removal entirely of the recoverability of success fees and the ATE insurance premiums.  Does this indicate some commitment to pursue those ideas or merely reassuring words? 

A different beast

Defamation cases are only some 220 per year—a tiny proportion of claims issued each year. The vast majority are personal injury or debt claims. In these, however, the politics is somewhat different. We have already seen the responses of different sectors to the proposals made by Jackson LJ which show that there is a considerable greater political battle for this wider range of claims than the rather closeted world of defamation. It is interesting to note that the response from defamation claimants’ lawyers has been somewhat muted. There have been voices opposed to the changes but not perhaps of the velocity that we might have expected. 

The politics will undoubtedly hot up when it comes to some of Jackson LJ’s other proposals that need primary legislation.

Many solicitors are opposed to referral fees and welcome what Jackson LJ has said about them. On the other hand the claims management companies themselves (perhaps backed up by the Office of Fair Trading) will mount a substantial defence suggesting that the activities of claims management companies giving people access to the courts that they would not otherwise have. Similarly, in relation to recovery of the uplift of the conditional fee and the ATE premium, the Association of Personal Injury Lawyers (APIL) and those representing claimants are bound to mount a political battle over the proposals. 

Civil justice has always found it difficult to find a place on the political agenda. The cynical might say that the consultation on defamation proceedings only has hit the political agenda because of the election and perhaps thereafter the whole issue will fall away. It would certainly be a disappointment to all involved if the politicians drop these issues after the election. Change is needed and the core of Jackson LJ’s recommendations should proceed or at least be debated in public.

Like them or loathe them, Jackson LJ’s views (rather like those of Lord Woolf before him) reflect the mood of our time to get the balance right to give both sides of the litigation divide affordable access to justice. There is much that can be done by us in conjunction (and debate) with Jackson LJ’s initiative and much can be achieved without the politicians.

David Greene, consultant editor NLJ & president of the London Solicitors Litigation Association (LSLA)
 

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