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Implementation of Lord Justice Jackson’s costs forms continues to gather pace. The Court of Appeal has implemented (somewhat by the back door) Jackson LJ’s proposal for a 10% increase in general damages (too partially compensate claimants for losing recoverability of success fees and ATE premiums) in its recent judgement in Simmons v Castle  EWCA Civ 1039. This will apply to all cases where judgement is given after 1 April 2013. This does beg the question as to whether claimant solicitors, particularly in high value claims, would be negligent to settle claims prior to that date. Conversely, defendants have a reasonably large incentive to settle claims prior to that date and make offers that will afford them sufficient protection. Will the issue therefore arise as to whether, when a court is determining whether a Part 36 offer has been successful, it will have to take into account the date the offer was made (ie a Part 36 of £10,000 made before 1 April 2013 will be worth more than a judgment of £10,999 made after 1 April 2013, assuming the offer is for general damages only).
Further, in so far as the increase in damages was supposed to compensate the claimant for having to pay his own success fee and ATE premium, the additional liabilities will only be irrecoverable for cases where the CFA/ATE is entered into 1 April 2013, whereas damages will increase for all judgments after that date. There will therefore be many claims where defendants are paying out an extra 10% in general damages despite also having to meet the claimant’s success fee and ATE premium in full. This is one of the problems created by a significant change such as this being brought in by the back door of judicial intervention rather than through proper statute with carefully drafted transitional provisions.
The government has also continued to reiterate its determination to extend the RTA portal upwards and outwards in April 2013, despite various concerns and misgivings from certain quarters.
The government has also announced plans to introduce a new streamlined claims process for mesothelioma claims. Details are extremely vague at this stage but this will also apparently address “the civil litigation costs for all mesothelioma claims, to reflect the faster claims process and in line with the government’s wider reforms”. This is almost certainly shorthand for some sort of fixed fees that are considerably less than the amounts currently allowed.
The Ministry of Justice has also announced that the Jackson Reforms will be reviewed after three years. This may make you wonder (worry) as to what they may have in mind if they conclude that these refroms have not exerted a sufficiently downward pressure on legal costs.