As the legislation to implement Lord Justice Jackson’s reforms of civil litigation costs negotiates its passage through parliament, work on the implementation of the changes continues apace.

There have been rumblings from claimant lawyers that Jackson’s 10% increase in general damages - designed to compensate for taking out recoverability of success fees and after-the-event insurance - was ‘not in the bill’.

It now transpires that the Ministry of Justice has handed implementation of this aspect of the reforms to the judiciary. The judges will presumably increase the guideline rates payable for different types of injury. But claimant lawyers point out that most cases are settled in a negotiation with insurers, who will not necessarily start making all their offers 10% higher. That is a fair point, and something that should be tracked by independent data.

But for the cases that do go to court, claimants will have to put their trust in the judiciary to achieve an effective means of ensuring that damages really do see that 10% rise. After all, the government has made it clear that this is what it wants.

And speaking to a defendant lawyer last week, the view on that side of the fence is that ‘judges are always trying to find ways of awarding the maximum to the claimant’. Needless to say, the insurers maintain that handing implementation of the damages increase to judges is no big deal.

The bulk of the work on implementing Jackson is being carried out by the Civil Justice Council, which has set up a working party to find the best way forward. As that party is made up of practitioners on both sides of the claimant/defendant divide, who deal with these issues on a day-to-day basis, it is believed by many to be the best-placed forum to find solutions that will work. That is particularly true in relation to the rules on qualified one-way costs shifting (QOCS), where so much will depend on the detail.

But while the CJC is dealing with the rules governing what ‘behaviours’ by claimants will lead to them having to pay their own costs when they lose, the MoJ has confirmed to me that it is taking on the ‘financial aspect’ itself.

That means it will be the MoJ, rather than the CJC, that will set the rules on how wealthy a claimant must be before they become liable to pay their own costs when they lose a case.

The MoJ says whatever detailed rules it comes up with ‘will ensure that only the very wealthy would be at risk of paying any costs if they lose’, and will ‘seek to balance the cost between claimant and defendant'.

It adds: ‘The Civil Justice Council and expert practitioners are better placed to consider the circumstances in which the claimants, in light of their behaviour, should not benefit from qualified one-way costs shifting.

‘All elements of qualified one-way costs shifting are currently under discussion and will be subject to wider discussion as the work continues.’

No doubt the government is perfectly capable of coming up with sensible rules relating to the wealth of claimants in relation to QOCS.

But if it wants its rules to work, let’s hope that it will still be receptive to input from the solicitors and barristers who deal with these cases on the ground.

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