The Jackson Reforms - Proportionality
Lord Justice Jackson has issued a report recommending a dramatic shift in the way the civil litigation system works. If these proposals do become legislation, they will have a devastating impact on those who have been injured due to clinical negligence, as victims may ultimately be denied access to justice.
To help you understand how clinical negligence claims will be affected by the Jackson reforms, we have prepared a series of articles which explore the new legislation in greater detail. This article takes a closer look at the issue of proportionality.
Proportionality - The Present Position
At present, proportionality is the principle which states legal costs should be proportionate to the claim. This does not mean the actual value of the claim, but the complexities involved.
There is currently an effective test of proportionality, which was established by Lord Woolf in 1999 when he was the Lord Chief Justice of England and Wales. The test he introduced states that if a lawyer can show that costs are 'reasonable and necessary', then these costs are permitted.
Proportionality - Proposed Changes
A new test of proportionality is to be established, although the final details of this test have yet to be defined. It is anticipated, however, that the costs incurred by a claimant's lawyer will be disallowed, even if they are necessary to prove the case.
However, it is difficult to argue against the already existing test in which work that is 'reasonable and necessary' must be paid for. Indeed, if the work is necessary, then it is paramount it is carried out. Otherwise, the public will receive a substandard legal service. Additionally, it is logical to assume that this work should be paid for - it is irrational to have a judicial system which restricts lawyers to such an extent that they are unable to prepare a legal case properly.
Consequences
The changes to proportionality will force lawyers to prepare a case within certain constraints. This will lead to an uneven playing field for claimants, whose lawyers will be prevented from carrying out the work necessary to prepare a case.
The proposals to proportionality, along with the other recommendations made in the Bill, will therefore have a whole host of unintended consequences. These have been summarised by the Consumer Justice Alliance (CJA), who conclude the Jackson reforms will:-
- Constrict and inhibit access to justice;
- Reduce the availability of legal services to injured persons;
- Benefit defendants at the expense of injured persons;
- Deprive injured victims of their rightful compensation;
- Prevent the proper preparation of legal cases.
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Early legal assistance can be vital so please contact us if you would like to discuss your situation. Please call us free on 0800 234 3300 (or from a mobile 01275 334030) or complete our Online Enquiry Form.
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