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'We haven't got a clue what we're doing' after Mitchell, former FOIL president says

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Leading silks discuss setting up arbitration scheme to bypass clogged-up courts

2 April 2014

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"We haven't got a clue what we're doing, and the reason is the inconsistency with which Mitchell is being applied by the courts," Rod Evans, former president of the Forum of Insurance Lawyers (FOIL), told a conference this morning.

Evans even said that leading personal injury silks were discussing the idea of setting up an arbitration scheme to "bypass the courts altogether" because they were becoming so clogged up with procedural cases.

Speaking at the Westminister legal policy forum, Evans said that, because of consolidation in the market, leading defendant personal injury firms could go to leading claimant firms, like Slater & Gordon, to set up an arbitration scheme.

He hit out at this morning's announcement, by the MoJ, of huge increases in court fees for money claims, to apply from 22 April. Fees for claims between £5,000 and £15,000 will go up from £245 to £445, and from £15,000 to £50,000 from £395 to £610.

Evans said litigants were being asked to pay more for a service which was "vastly inferior" to what it had been.

"Charging more for less is not something that has ever been well-received and I'm sure it won't be on this occasion."

On Mitchell, Evans said that it had triggered a wave of "trip-wire litigation" and there was concern that "the punishment does not seem to fit the crime".

This was echoed by Matthew Harman, founding partner of Harmans Costs, who asked: "Where is the proportionality in the sanctions applied in the myriad of cases since Mitchell? There is a culture of fear out there."

Elsewhere on Jackson, Evans said that QOCs had not produced the increase in claimant Part 36 offers which he had expected.

"Defendants are making more and earlier Part 36 offers, which I welcome. The costs defendants are paying have come down since Jackson, but the cost of litigation, now that we're all Mitchelling each other, will go up."

Evans said claimants were being more reasonable than he expected, helped by costs budgeting.

"Costs budgeting has become costs capping. It's tempting for the courts to knock 20 per cent off everything, but it may mean allowing 80 per cent of something that should not have been allowed."

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