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Jackson LJ demands his reforms are implemented in full

20 January 2011

Lord Justice Jackson has called on justice secretary Ken Clarke to implement his civil costs reforms in full.

The justice secretary gave strong backing to Jackson LJ’s plans to cut the cost of civil litigation when he launched the MoJ’s consultation in November last year.

However, in the consultation paper, officials suggested a number of ‘refinements’ to protect specific groups of claimants.

In a letter to the Lord Chancellor published today, Jackson said that it would be the “worst of all worlds” to retain some elements of recoverability for success fees and insurance premiums and so add to the “present morass of rules and case law”.

He went on: “Likewise, it would be a disaster to raise general damages in CFA cases but not in other cases. Any such approach would create perverse incentives and undermine the structure of the reforms.

“Second, the complexity of civil procedure is now a real problem and generates substantial costs. The new rules must be simple and clear. Any attempt to legislate for every situation is a chimaera, resulting in complexity and escalating costs.”

In an unusual move, Jackson LJ published his response to the MoJ’s consultation on the Judicial Communications Office website.

He said there were three areas of law where the MoJ was suggesting some element of recoverability should be retained – judicial review, housing disrepair and complex personal injury or medical negligence actions.

Jackson LJ said that, under the legal aid green paper, legal aid would be retained for the most important judicial review cases and for the most important housing disrepair cases.

“Many complex personal injury claims present little or no risk on liability, so there is no need for a success fee at all in such cases,” Jackson LJ said.

“So far as quantum is concerned, there is no reason why the part 36 risk should be borne by the defendant. On any view, that should be a matter between the claimant and his own solicitors.”

The lord justice said it was not his function to comment on whether legal aid should be retained for medical negligence cases.

He attacked the suggestion by the MoJ that recoverability of ATE premiums should be retained for disbursements, but suggested that legal aid should be retained for pre-litigation disbursements in clinical negligence cases.

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Company, Consumer, and Contract Costs Local government