You are here

Jackson review 'could breach European law', QC says

14 February 2011

Removing the rights of the victims of serious accidents to sue for negligence could trigger legal challenges under the European Convention, a leading public law silk has warned.

The warning came as the deadline for responses to the Jackson review of costs in civil litigation expired today.

In an opinion commissioned for APIL, Nigel Pleming QC said the impact of capping success fees as a percentage of damages and abolishing recoverability had been considered by Jackson LJ and his team against the background of the majority of claims.

The QC, based at 39 Essex Street, said he had “considerable doubts” whether the proposed changes could be defended on ECHR grounds as they applied, not to the majority of claims, but to catastrophically injured claimants.

“The final report changes would, we understand, leave the safeguarding of a catastrophically injured claimants’ right of access to justice guaranteed by article 6 of the convention reliant, in broad terms, upon finding a suitable legal team prepared to forego payment for the financial risk undertaken in entering a conditional fee agreement.

“At best, this leaves access for justice for such claimants on a precarious basis.”

Pleming said he considered that the imposition of “a one size fits all regime” upon even the most serious and complex of claims would require separate analysis and justification under article 14 of the convention (freedom from discrimination).

He warned that it “may be difficult to defend the proposals” under article 14 as a “proportionate response to the requirement to balance the interests of seriously injured claimants and the insurance industry”.

The QC concluded that there were “real prospects of a convention-based challenge to the funding reform proposals as they impact upon catastrophic claims succeeding”.

Elsewhere in its response to the Jackson review, APIL said the combination of the review and the legal aid cuts would create a “perfect storm” that denied access to justice.

“Some of the most seriously injured victims of negligence, such as babies born with brain damage because of medical errors, could be stopped from getting justice because they won’t have access to legal aid and the CFA regime won’t serve them properly either,” Muiris Lyons, president of APIL, said. “It isn’t fair and it isn’t just.”

Instead, APIL called for success fees in clinical negligence cases to be regulated and staged across the course of proceedings.

Tim Oliver, president of FOIL, said Professor Fenn’s analysis of the Jackson review showed that changes to success fees, ATE premiums and qualified costs shifting could result in 61 per cent of claimants being better off.

“Jackson’s reforms are an interlocking package that, as a whole, balances the interests of claimants and defendants,” Oliver said. “Any cherry picking of proposals would unbalance the impact and is unacceptable.”

Nigel Muers-Raby, chairman of the Consumer Justice Alliance, a coalition of charities and law firms, said accident victims would find life “much tougher” under the proposed reforms.

“We recognise that reducing costs is a key objective for the government, but this can be achieved without wholesale changes to the current civil litigation system that will ultimately hinder the ability of injured victims to seek fair and reasonable access to justice.”

Andrew Dismore, coordinator of the Access to Justice Action Group, said the only winners from the Jackson review would be “the insurance companies’ shareholders who will benefit at the expense of ordinary claimants seeking justice”.

Categorised in:

Police & Prisons Costs ADR Clinical negligence