PI: the Jackson aftershock

"One of the themes that runs through Jackson LJ’s final report is the idea that PI claims generally are straightforward and not complex.

Complex issues

In my experience straightforward claims do not carry very much risk, but a lot of complex issues can arise such as forseeability, duty of care, causation etc. Under the current regime, solicitors and counsel take on complex claims putting all their resources and time and effort into them on the grounds that they win some and lose some. That is litigation risk and success fees balance that risk. I feel the report fails to reflect this.

Fundamental principles

There is also the fundamental principle that a victim should recover damages as a result of another person’s negligence. As a principle, the idea that a victim should have to pay some of the costs out of the damages to establish liability in order to obtain damages, I just find unjust. It will also involve undertaking a completely different form of risk assessment. When you can balance that risk with success fees the system works;  but when you have high overheads and disbursements (including counsel’s fees) you may be more reluctant to take on certain cases, without the benefit of success fees. I also feel Sir Rupert has failed to consider the extents to which well established, and excellent, high street solicitors, who are specialist PI practitioners, are going to be affected by the reforms. They will not be in a position to spread these overheads across departments like larger city firms.

Passionate professionals

But whatever happens post the election, solicitors and counsel—those who practise in PI litigation—are passionate about assisting clients and they will continue to provide a first class service. I am confident they will continue acting for clients, and adapt to these changes with confidence.”

Simon Butler, barrister, Ely Place Chambers.  NLJ newscast participant