CPR

CPR

CPR

Introduction

CFAs, also known as 'no win no fee' agreements, were introduced in 1995 and their scope was extended in 2000 with the intention that they would take the place of public funding via Legal Aid for most categories of civil litigation. Civil Legal Aid was effectively abolished in the vast majority of cases. Claimants whose CFA-funded action fails pay their own lawyer nothing and, though theoretically liable for the other side's costs, can protect themselves against this risk by taking out after-the-event (ATE) insurance.

Background

If a CFA-funded claim is successful, the costs recoverable from the losing party include both the claimant lawyer's 'success fee' and the claimant's ATE premium. The Jackson Report identifies the CFA regime as a major driver of costs in the civil justice system, and proposes a fundamental change in the funding of legal services in order to address this perceived deficiency. The key Jackson strategy is to transfer the costs of securing access to justice from defendants and their insurers (and hence the community at large) to injured persons and their lawyers. It does so by proposing to abolish the recoverability of success fees and ATE insurance premiums from defendants. By way of trade-off, it recommends that damages for pain and suffering be raised by 10% - because the success fee would have to be paid out of the injured person's compensation - and the introduction of a 'one way' costs rule in personal injury cases, meaning that claimants will generally have no liability for the defendant's legal costs even if their claim is unsuccessful, and that ATE insurance would become largely redundant. In personal injury claims, the interests of the claimant from an access to justice perspective will naturally differ from those of the defendant.

While from an academic point of view it would be possible to engage in a long and detailed theoretical debate about the meaning of access to justice, it is argued that for present purposes what matters most is what it actually means to the ordinary citizens who find themselves caught up in a civil dispute. For the aggrieved victim seeking a remedy for injury suffered, what is important is obtaining easy access to an official legal forum in which to air his/her grievance against the defendant and consequently to have the dispute properly resolved. The working group set out to subject the Jackson proposals and their evidential foundations to critical analysis, to make an independent contribution to the debate on civil litigation costs as respected academic experts not previously committed to one side or other of an at times polarised debate, and to stand up for both the interests of claimants and the general public interest rather than the narrow commercial interests of insurers, claimant personal injury firms, or others with a direct financial stake. The process by which this further transfer is effected varies according to the success or failure of the claim. In a successful action in court, the defendant is usually ordered to pay the claimant's legal costs, ...