The Government’s response to the consultation on reforms to civil litigation and costs (the Jackson reforms) has now been released.
The full response can be downloaded here [pdf] and the associated impact assessment is here [pdf]
In short, the Government intends to go ahead with its original proposals. From the perspective of HLPA members, some things are not at all clear.
While a 10% uplift in general damages is envisaged, in part to replace the success fees payable by the Defendant, this is referred to at some points as being solely damages in tort (personal injury), which would not apply to disrepair, which is contractual. However, at other times, the reference is to general damages or non-monetary losses per se. Whether the 10% uplift in damages will apply to disrepair will have to be clarified in the forthcoming legislation. However, disrepair CFA success fees will not be recoverable from the Defendant. Given the level of disrepair damages, this makes success fees difficult in such cases, even though, unlike Personal Injury, the success fees are only capped to 100% of costs. The same applies to the proposals to make contingency fee agreements lawful.
ATE insurance premiums will not be recoverable from the Defendant. There was an emerging market in disrepair ATE insurance, that protection for the claimant client will not be available under the proposals unless paid for by the client.
Further, qualified one way costs shifting, where the Claimant is largely not liable for Defendant’s costs is not initially to be introduced for non PI/Clinical negligence matters, so not for disrepair or indeed judicial review. So there will still be liability for the Defendant’s costs on a failed or lost claim.
There is a change to Part 36 rules proposed, making Defendants liable for a further 10% of the value of a claim in damages if they failed to accept a reasonable offer by the Claimant, even if the Claimant did not beat that offer at trial. There may be a further or different sanction for non-monetary claims.
In view of the Government’s intention to take many disrepair claims out of legal aid scope, these proposals make difficult reading for those looking to fund claims for clients on low incomes in other ways.