Litigation focus | Killed or made stronger?

The Ministry of Justice remains addicted to cutting. Like so many involved in abuse and self-harm, it repeatedly proves itself incapable of listening to good sense. It is deaf to everything but its own narrative - that all lawyers are driven only by self-interest, and that any opposition from them to its schemes must be venal in nature.

Meanwhile, practitioners have had to grapple with the consequent changes. ?Those working in injury litigation are not only under fire from the big guns of LASPO itself, but also from the camp-followers, in the form of changes to the CPR, and in particular to the portals and the fast track. ?It is still, nearly four months in, unclear quite how these changes are going to play out in the courts; but this dispatch from the front may help.

'No success fee' model

The main new development in relation to conditional fee agreements is an increasingly widespread realisation that many of the big solicitors are moving towards a "no success fee" model. This is for two good reasons, both LASPO-generated: lawyers remain (contrary to the government narrative) uneasy about taking money from their clients' damages and the amounts available as success fees will be minimal anyway given the cap.

The Bar is going to be asked to do the same. There may be exceptions but in general we will no longer get success fees. This will initially pose real problems; barristers are often instructed late, and on the more difficult and risky cases. The obvious response to this is an increase in base fees; which will simply shift the costs war to different territory.

There is also a quite separate and acute problem with the transitional arrangements for CFAs which PIBA has been trying to resolve - where a solicitor has been instructed on a CFA before 1 April, but counsel is instructed on a CFA after that date. Does the old regime or the new apply to counsel's agreement? There is no obvious answer. Prudence appears to suggest that counsel should enter into a new-style agreement. But even then there are potential problems, since the success fee would not be recoverable from the defendant, and the claimant may have been told there will be no deduction from his damages.

There is an issue for insurers too - a new style agreement for counsel appears to trigger the 10 per cent uplift in PSLA under Simmons, even though the solicitors' agreement is pre 1 April. Frustratingly neither government nor insurers are prepared to engage in discussions on this issue. This leaves all the lawyers concerned in limbo, not least in advising their clients on the consequences of engaging counsel under a CFA.

Portals and fixed fees on the ?fast track

The government has continued to wield the axe in respect of portals and fast track. The new rules are not wholly published but the position seems to be as follows:

? there are now expanded portals for all road traffic accidents (RTA), employer liability (EL) and public liability (PL) cases worth less than £25,000;

? all such cases should be commenced in the relevant portal;

? while within that portal they will attract a (low) level of fixed fees for advisory and then trial work;

? if they fall out of the portal (for example if liability is in dispute) they will still only attract a (slightly higher) level of fixed fees for such advisory and trial work; and

? the fees for a liability and quantum ?case are no more than for a quantum ?only case.

?In practice, this means it will be rare for counsel to be instructed in any fast track cases except at trials. Furthermore, since the long-established disbursement basis for paying counsel will have gone, if counsel is instructed at all, their fees will be limited to some proportion of the fixed fees, when their involvement is viewed as cost-effective. How often will that be? Only ?time will tell.

Significant reduction

The amount of fast track trials itself that the Bar will see is difficult to predict. My view is that this will reduce significantly, at least in cases where solicitors are acting. It is however possible that the appetite of defendants to fight will increase given the lower costs exposure.

There is a positive aspect to all this. As ever, the Bar has to adapt or die. It has proved itself to be surprisingly good at adaptation. Single specialisation has always been dangerous for barristers, and is increasingly so now. Aspiring junior ?PI practitioners who cannot get fast track work may find the need to concentrate on multi-track work refreshing; or otherwise develop into personal injury at a later stage in their careers.

The key will be whether junior practitioners can, through their ?chambers, make contacts with personal injury firms even though the fast track work will have reduced. They might do this by providing additional value to the solicitor (e.g. costs counsel), or by increasing their involvement in big cases, or by offering solicitors a team to work on any given case comprising both senior and junior barristers as appropriate.

There is a wide range of possibilities, if only we have the imagination and courage to see them and to act upon them.

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