ABS diary | Optimism in a post-Jackson climate

Throughout my career I have worked on the high street as a general litigation solicitor covering a variety of practice areas, although I cut out family and criminal work nearly 20 years ago. Personal injury work now represents a smaller part of my caseload than it did pre-Woolf or, perhaps more accurately, before the rise of the claims management companies and the BTE insurance market. I even remember the days when you would meet the defendant insurer's claims inspector in your office to thrash out a settlement often including costs. If the costs war is now over, I wonder if those days are likely to return.

This is the third revolution in my time. The first was Woolf and the advent of the CPR. This produced some useful tools such as the overriding objective and Part 36, but overall I think costs have escalated, not least due to the need to frontload claims as you had to be fully prepared before you issued. The second was the long running costs war, with the introduction of conditional fee agreements and recoverability introduced to replace the legal aid.

There is little point in complaining or protesting against the Jackson reforms because the political tide is against us. There has undoubtedly been abuse by some in the RTA field which has tarnished the reputation of the majority of us civil litigators, who are simply trying to recover a reasonable amount of compensation, certainly not an excessive amount, for people who have been injured and '¨suffered loss as the result of the negligence of others.

We have all read about cases involving relatively modest sums of damages where the claimant's solicitor's costs are more than tenfold the damages.

Are the vast amounts recovered for credit hire morally justifiable and how do we explain the recent rise in whiplash claims when the number of RTA injuries are declining and vehicles and roads are becoming safer?

We need to be positive, accept our medicine and look for opportunities in the changes, starting with funding arrangements. Success fees and ATE premiums are no longer recoverable but there is no reason why we cannot continue to offer CFAs with the success fee being payable out of the client's damages if the claim is successful. We are providing a service to clients no different to other high street professionals such as dentists and accountants. I do not see that it is morally wrong for clients to pay something out of their damages for the risks we take on their behalf and the premium service we offer. This is one area where the high street can do well. Our clients are all local and we are available to see them at relatively short notice. As an experienced solicitor I can guide and support them through what can be a distressing process at an anxious time. ATE insurance should still be available to cover disbursements and the part 36 risk, and it may also be worthwhile taking out ATE insurance on the larger claims not involving personal injury even if a substantial premium may be payable out of damages recovered. The insurance market has yet to settle down post-Jackson, but I am sure it will remain competitive with suitable products on offer.

Before-the-event insurance has been considered another option but it is not straightforward for lawyers, and not necessarily the best for clients. Following the decision in Sarwar v Alam I have often found it an impossible or tortuous process to become authorised by a BTE insurer. If we do obtain an indemnity then there are often 40 pages of small print governing the operation of our retainer. With recoverability now gone we can offer the client an informed choice between a bespoke service with the solicitor of their choice or being referred to a bulk panel supplier from the BTE insurers. We will be able to freely act under a CFA without all the regulatory hurdles and qualified one-way costs shifting will hopefully obviate the need for ATE insurance, at least at the outset.