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Ministry of Justice: Reforms

On any given Saturday, amateur football coaches can be found stalking sidelines and shouting at their teams to “keep it simple”.

Although not necessarily in the spirit of the beautiful game, getting the basics right can be a bedrock for success on the pitch and a direction that often delivers the desired result.

Strangely, however, it is a tactic the Ministry of Justice has deemed suitable to be applied to the field of law in England and Wales.

After years of speculation, the government has confirmed that fixed recoverable costs are to be expanded so that all civil claims – except those relating to clinical negligence – up to £25,000 in the fast track will be subject to capped costs. Furthermore, most claims below £100,000 are likely to receive the same treatment.

The rationale for this new strategy is based on the premise that uncertainty of costs hinders access to justice, while certainty of costs set at a “proportionate and fair level” enhances it. A noble strategy, perhaps, but one that overlooks the nuanced nature of Personal Injury (PI) law, in which the rule changes will be less a simplification of the system and more a potential dumbing down of the representation afforded to claimants.

Unlike players in a football team who can relatively easily be assigned as a goalkeeper, defender, midfielder or attacker based on their skills, those who have suffered injury or illness through no fault of their own cannot neatly be pigeon-holed into one of the four bands of complexity that are incoming.

Similarly, to suggest that claims below £25,000 are the equivalent of a “tap-in” for solicitors suggests that the effort taken to “arrive in the box” holds no value. The reality is, of course, that the potential prize does not – or should not – dictate the time and intensity of a lawyer’s “run out”.

Claimants deserve to continue to be appraised, cared for and fought for based on their personal needs and failing to acknowledge that cases of industrial disease, for example, can be highly complex, poses a threat to such provisions.

Law firms are, after all, like any other business and rely on fees to remain sustainable and pay the salaries of their staff, who contrary to popular perception do not command Premier League-style wages!

The government accepts that the reforms will lead to a reduction in income per case and while it counters that the swiftness of settlements will create capacity, supposed simpler cases may be shunned in favour of those that ultimately promise a reasonable return on investment.

At best, many smaller practices will be forced to task lower skilled fee earners to manage fast track caseloads. This lighter line-up will serve only to benefit the defending party and certainly can’t be described as creating a level playing field.

Leaving talented lawyers on the bench could also have a detrimental impact on PI’s pipeline, causing the graduates and newly qualified of tomorrow to turn their attentions to other areas of the law. If there are no substitutes to call upon, who will be there to represent those deserving quality representation? Accidents are not miraculously going to stop happening.

In this respect, the access to justice argument used to champion the changes is a proverbial penalty miss. It is largely irrelevant to PI given that 99.9 percent of claimants sign up to Conditional Fee Agreements, which were introduced in 1998 as an option for those without the means to pay for legal representation. Costs, therefore, have simply not been a barrier to competition.

Rightly or wrongly the rules are, however, changing and while the Ministry of Justice is yet to finalise the kick-off time for its new regime, Accident Claims Lawyers will be ready and match fit. As a company we have a proven pedigree for tackling reforms and are supremely confident our professional agility and expertise will enable us to provide a winning service to our customers – no matter the size of the prize at stake.

Jon Shields, Serious Injury Lawyer and Thomas Phillips, Serious Injury Lawyer of Accident Claims Lawyers UK

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