We live in strange days. This week the political class commenced tearing itself apart with renewed fervour over the on going Brexit debacle. The sense of the moment, is that the noose the government has woven for itself, may have been long and slow in the drawing, but is now proving tight and hard in the end. Who knows who will be Prime Minister next week, or what will happen between now and March 2019?
One of the immediate consequences of the Brexit kerfuffle is that it distracts the government from other immediate, pressing and important areas of public administration: where work is needed in order to address clear and present shortcomings: benefit reforms, which if botched will cause the poorest and most vulnerable members of our society to suffer; the chronic and seemingly irremediable housing crisis, to which the government’s only substantial policy “Help to Buy” is arguably contributing to, by inflating house prices and allowing the housebuilding industry to extract economic rents, paid for out of the public purse, and of course, a long way behind these, reform of civil litigation costs.
Recently I was researching a paper on fixed costs. As far as I can tell the Jackson proposals for introduction of fixed costs across the whole of civil litigation have disappeared into a Black Hole (good, I hear you mentally say) and the Civil Justice Council Working Party which was meant to have proposals to implement a regime of fixed costs for clinical negligence cases by the end of September 2018, has failed to publish them.
There is no interest in reforming the DBA regime, to make that funding arrangement actually fit for purpose. There remains a justice “gap” for litigants in asymmetric litigation against public authorities and large commercial litigation, who have been given rights by parliament, but find it impossible to enforce those rights as they neither qualify for Legal Aid, nor can they source ATE insurance.
In this sense personal injury litigants are actually (though they would not believe it) in something of a privileged position set against the litigant who wants to judicially review their local council or NHS trust, or bring proceedings in the county court for discrimination under the Equality Act 2010 and who faces the uninviting prospect of losing their home to pay legal costs, should they lose.
The obvious solution of either the expansion of Legal Aid (though that’s not going to happen) or the extension of the Qualified One Way Costs shifting provisions to cover judicial review, discrimination claims, actions against the police and professional negligence actions is simply not on the political agenda.
Is this likely to change in the next six months and will we see meaningful reform? Producing my crystal ball I would say not if Mrs May survives and the current imbroglio continues until at least March 2019. And not if she goes, either, as whoever is the incoming Prime Minister, of whatever political hue, is unlikely to give costs reform anything approaching a priority, or even Parliamentary time. There are simply too many other things to attend to.
I would suggest the sole exception to this benign neglect is likely to be the Civil Liability Bill/Act because the measure is seen by the Civil Service to be necessary. What is apparent is that although to many people the effective abolition of the whiplash compensation injury is the major part of the legislation, in actual fact the real driver is the provisions relating to the discount rate.
This is a Treasury driven reform: the issue is to make damages in clinical negligence claims sustainable, through lower multipliers, which is a saving going to be worth hundreds of millions of pounds to the NHS and hence the cash strapped government as a whole, whatever hue it might ultimately be.
But I do wonder, if in the shadows, a new leader, a strong leader, is just waiting to emerge…