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Things can get better

Judges make mistakes. No judge believes they get it right all the time, as Lord Scott reminded a conference in London last week, says Nick Hilborne

8 April 2014

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Was Mitchell a mistake? Many claimant and defendant personal injury lawyers think so. Rarely have the two sides been so united. Rod Evans, former president of the Forum of Insurance Lawyers, took the debate to a new level by suggesting the courts were so clogged up with post-Mitchell technical challenges, arbitration might be a better way forward.

Using the language of Jackson, Matthew Harman, founding partner of Harmans Costs, questioned whether there was any proportionality in some of the sanctions applied by the courts in the wake of Mitchell. The same criticism could be made of the ruling itself, which imposed a sanction completely disproportionate to the breach. When the impact on the justice system as a whole is considered, the judgment fails again.

Dr Andrew Higgins, lecturer in civil procedure at Oxford University, injected a dose of Aussie positivism into the proceedings at the Westminster legal policy forum. Dr Higgins said triviality could be measured either by the extent of the departure from the rules or the impact on the parties.

There is scope for flexibility in the way the Mitchell decision is interpreted, he said. In the same way, Dr Higgins suggested that a simpler, more generous approach to contingency fees could be more productive than the current regime, with its ‘don’t bother’ agreements.

He suggested that lawyers should be allowed to take a bigger chunk of damages than 25 per cent, with the courts given the power to review disproportionate fees. This could bring high risk or highly complicated claims back into the system.

Incidentally, Dr Higgins, who used to work at Slater & Gordon, said the firm “could not believe its luck” when the UK government decided to ban referral fees, knowing that this would wreck the business model of many of their competitors.

Master Hurst, the senior costs judge, repeated the mantra that it was “too early to tell” on the impact of Jackson, owing to the enormous backlog of pre-LASPO cases, but at least acknowledged the tension between resolving cases justly and at proportionate cost.

Proportionality is missing from the court fee increases announced last week. Fees for money claims between £5,000 and £15,000 will go up from £245 to £445, and for claims between £15,000 to £50,000 from £395 to £610. All this must be seen against the grim background of the civil legal aid cuts and widespread law firm failures, many in the personal injury sector.

A common-sense approach to interpretation of Mitchell and a new, sensible set of DBA regulations would be a good place to start repairing some of the damage.

The government’s decision to devote £75m a year to modernising the courts suggests that even the Treasury thinks that having a functioning civil justice system might be of some value.

Finally, your next foreword will be written by our new editor at large. Have you guessed who it is? Until then, follow #sjguesswho at to see what fellow readers and solicitors think.

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