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Whether excessive legal costs are really a problem depends, in part, from what perspective you are considering matters. Defendants have little difficulty appreciating how problematic this issue is. However, claimant representatives have been far slower to join in the criticisms. How strange then that the Association of Personal Injury Lawyers (APIL) should now join in and what a strange area they have decided to highlight.
Responding to the Ministry of Justice consultation on increasing civil court fees, APIL said “injured people could be left high and dry as the increases will effectively price them out of the courts”. APIL president Amanda Stevens said the changes would mean fees could rise, on average, by around 55 per cent, and more than 4,000 per cent in some areas. “Increases on this scale are staggering and will undoubtedly make it more difficult for injured, vulnerable people to receive assistance from the courts if a claim cannot be settled any other way,” she said.
In a previous blog I commented on one of the proposed fee increases. So what increases does APIL believe will prevent injured people receiving proper compensation? The only increases that APIL felt able to comment on are those in relation to detailed assessment proceedings. Other than the truly eye watering increase for LSC funded cases, the other increases raise, for example, the fee for a request for a default costs certificate from £45 to £60 and the fee for appealing a decision made in detailed assessment proceedings from £105 to £200.
Now, I may be somewhat naive here, but do any lawyers really believe that the court fees for certain aspects of detailed assessment are going to be a factor that discourages litigation? The average litigant will not have the slightest idea as to the potential costs of general litigation, let alone the costs of the costs. I would be fascinated to see a firm of solicitors that provides costs estimates to their clients that are so carefully calculated that these increases are going to be factored-in or, indeed, that any solicitors actually even consider the potential costs of detailed assessment proceedings when starting a claim and advising their client.
When the Guideline Hourly Rates were increased at the beginning of the year from, for example, £203 per hour for a Grade A fee earner in Band One to £213 per hour I must have missed the APIL press release complaining as to how this would price injured people out of the courts. Those increases will have a far larger impact on a far larger number of litigants than the proposed fee increases for detailed assessment proceedings. Of course, this is one area of legal costs that APIL has no interest in controlling.
Court fees represent a tiny proportion of the costs of personal injury litigation. The idea that these proposed fee increases will have any impact on the willingness or ability of potential claimants to bring claims is ludicrous. More interestingly, the fact that APIL has never expressed any concerns about ever increasing hourly rates highlights the real problem in the system. The combination of fee shifting, CFAs, trade union funding and BTE means most claimants in personal injury cases no longer have any interest whatsoever in the legal fees that their lawyers are incurring. It will be interesting to see whether the Jackson review is able to produce any solution to this problem and introduce some form of market control to the system.