The Law Society has called on the government to legislate to clarify the outstanding issues from this week’s high-profile Belsner judgment.
In Darya Belsner v CAM Legal Services, the Court of Appeal ruled that costs claimed back by a PI firm from the client’s damages were fair and proportionate. However the master of the rolls, Sir Geoffrey Vos, also noted the current position around funding arrangements was ‘unsatisfactory in a number of respects’.
Vos said the distinction between contentious and non-contentious costs was ‘outdated and illogical’ and in urgent need of legislative attention. He added it was also illogical that the Civil Procedure Rules should set mandatory costs and other provisions for pre-action online portals, but have little input otherwise in the process.
Instead Vos suggested that in future the Online Procedure Rules Committee should, in due course, make rules that affect claims in the pre-action portal.
The Law Society, which was an intervening party in Belsner, said the case has highlighted important issues which require further consideration – in particular the distinction between contentious and non-contentious and what the costs should be for each.
Vice president Nick Emmerson said the government should reflect on the case and ensure the civil justice system has a ‘solid foundation of clear legal costs provisions’ on which solicitors and their clients can rely.
‘Solicitors need to be able to continue to be paid fairly and reasonably for the work they carry out, while clients need an efficient mechanism that enables them to challenge the costs charged by their solicitor when there is a legitimate reason for doing so,’ he said.
‘It is therefore clear that much more needs to be done to ensure the statutory framework underpinning solicitor-own client funding agreements and their assessment is fit for purpose.
‘Over recent years there have been many changes to civil litigation procedure and funding. Legislation has not always kept up with these innovations.’
Emmerson said the uncertainty around costs shortfalls is only likely to increase, with the extension of fixed recoverable costs in April 2023 and further reliance on digitised, pre-action protocols.
Reflecting on the Belsner judgment, Emmerson said the outcome had averted a significant impact on solicitors and on the ability of clients to secure advice and representation.
‘Personal injury solicitors are there to represent those people who are injured or become ill through no fault of their own,’ he added.
‘It is crucial that solicitors can be paid equitably for the vital work they do. This judgment upholds that important point. Solicitors and their clients should be able to spend their time on the substance of a case, rather than the convoluted mechanics of how that case will be funded.’
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