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Injured victims face access to justice restrictions

The Government has confirmed that it intends to bring forward legislation to reform Civil Litigation in England and Wales, and a Bill is likely to be laid before Parliament in June.

The Consumer Justice Alliance, of which Harris Fowler is a founder member, a broad-based coalition of charities, patient groups and representatives of injured people, believes that many of the most vulnerable in our society will be hit by the proposed changes.

Two key proposed changes would make it harder for injured victims to obtain justice in the future:

*the time a solicitor can spend on preparing a case will be limited, whilst no such limit will be placed on the Defendant Insurance companies. This will lead to the Defendant Insurers having an unfair advantage over the ordinary man or woman in the street.

*in future part of an injured victim’s legal costs would be taken from their compensation as opposed to be being paid by the Defendant Insurer, as it is now. Awards of damages are based upon compensation for the injuries and losses sustained as a direct result of the accident caused by someone else’s negligence. It seems grossly unfair that in future the injured victim should be made to pay these costs out of compensation awarded to put him or her back into the financial position that he or she was in prior to the accident.

During the recent consultation phase of these reforms, the MoJ received over 600 formal responses to the consultation ‘Proposals for reform of civil litigation funding and costs in England and Wales’, the majority (70%) of which spelt out very real concerns and opposed the changes. However despite this, the Government is moving ahead with its plans at an alarming speed, ignoring the range of stakeholders who are concerned by the impact the proposals will have on the most vulnerable.

By its own admission the MoJ Impact Assessment concluded that “there is a lack of consistent, routinely collected data covering private funding arrangements’, and they ‘are unable to assess how different aspects of the policy package may interact, and how different parties will respond to the behavioural responses of other parties”. More so, they have noted “limitations on what they are able to model, based on the data received over the consultation period”. If there is a lack of data covering private funding arrangements, detailed information of how the policy package may interact, and limitations on how they have been able to model the collected data, on what detailed supportive evidence did the MoJ base their recommendation to implement the changes?

In summary it concludes that ”It has not been possible to quantify the costs and benefits of the Jackson package of reforms”. No business or organisation would implement changes unless it was in a position to quantify the costs and benefits – this appears to be exactly what the Government proposes to do.

It is also extraordinary that, in spite of having received a stark warning from three expert judges from the Senior Courts Costs Office, who have unparalleled experience in dealing with legal costs on a daily basis in Civil Litigation cases, the Government continues to push through its ideas regardless. Not only is the Government apparently determined to ignore the voice of the victims who will ultimately pay for the reforms, they are now choosing to overlook the considered views of senior members of the judiciary.

These three judges highlight serious mistakes in the thinking behind the Government’s proposals, which were prompted by Lord Justice Jackson’s original report. We thoroughly agree with the judges’ assertion that, “now is not the time to make radical changes which give no guarantee that access to justice at reduced costs will be delivered.”

The Government proposals are dangerous, injudicious and it is innocent victims who will suffer the most. If the Government will not listen to the Ministry of Justice Impact Assessment or to senior judges, it makes you wonder who is setting the agenda?

It is therefore vital that, when this legislation is debated in Parliament over the next few months, Members of both Houses are properly informed about the impact of these changes so that there can be reasoned consideration of the proposals, and anyone who is concerned by these proposals should lobby their MP now.

Fair access to justice and equality of arms are the cornerstones of a civilised society and MP’s should be left in no doubt that these will be severely impaired if the legislation goes through unchallenged.