Jackson reforms will 're-establish equality of arms', Lord Dyson says

The Jackson reforms will “re-establish equality of arms” between claimants and defendants in personal injury cases, Lord Dyson has predicted.

The Master of the Rolls said that after 1 April the pressure on defendants to settle “unmeritorious” cases should be “reduced if not eliminated” by bringing costs under control and removing perverse incentives to settle.

Delivering the Holdsworth Club lecture last week, entitled ‘Compensation Culture – Fact or Fantasy?’, Lord Dyson said: “Most importantly defendants will be able to secure their right to fair trial, through ensuring that they can properly defend those claims that are properly defensible”.

Lord Dyson said changes to conditional fees in the Access to Justice Act 1999 had inflated costs to “such a degree that, in many cases, it was simply cheaper to buy off a claim through settling it, than properly contest it.”

He said that it was “inevitable” that there would be greater pressure to settle unmeritorious cases, a rise in the number of these cases and concomitant increase in costs, the number of claims management companies and advertising.

Although he expected the Jackson reforms to go a “considerable way” to reducing pressure on defendants, Lord Dyson said he doubted very much whether there would be a reduction in news stories expressing concern about compensation culture.

As a result, there was a need, after April 1, for a “substantive educative effort” by the government, the courts and the legal profession to “counter-act the media-created perception that we are in a grips of a compensation culture”.

In a separate speech on the Jackson reforms yesterday, as part of the district judges’ annual seminar, Lord Dyson said commentators who suggested that the Court of Appeal’s ruling in Henry v News Group Newspapers [2013] EWCA Civ 19 was “some kind of signal” that the new costs rules would not be applied robustly after 1 April were “wrong”.

Lord Dyson said the case was heard under the old over-riding objective on proportionality and the new version made explicit that no more than proportionate costs should be incurred and compliance should be enforced.

“The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases,” he said. “This requires an acknowledgement that the achievement of justice means something different now.

“Parties can no longer expect indulgence if they fail to comply with their procedural obligations.”

Lord Dyson went on: “This may mean that in some cases, or some classes of case (such as those allocated to the small claims or fast track), that the court must reach a decision at trial on less evidence than it might have done in the past.

“To some extent, this has already been happening as a result of the introduction of case tracks. It also means that, where we exclude evidence because of a failure to comply with rules, PDs or orders, we must determine the cases on less evidence than we would have done in the pre-Woolf and pre-Jackson days.

“That we have to do so stems from our commitment to proportionality, and the need to secure a fair distribution of court resources amongst all those who need to come to the courts in order to vindicate their rights.

“We have limited resources. Demand for those resources outstrips that limit. We have to cut our cloth accordingly.”