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Publication of Jackson regulations is 'starting point' of 1 April reforms, says expert

The publication of three draft statutory instruments (SIs) that will implement part of the 'Jackson' reforms to civil court costs and procedures shows that the Government remains intent on a 1 April start date, an expert has said.24 Jan 2013

However Keith Levene of Pinsent Masons, the law firm behind, warned that the comprehensive 'making document', which he said is rumoured to be over 50 pages long and which sets out much of the detail of the changes, needed to be published as soon as possible.

Changes to court costs and procedures, as recommended by Lord Justice Jackson's wide-ranging review in 2010, are due to come into force in April as part of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). The draft SIs deal with the introduction of damages-based agreements (DBAs), changes to Conditional Fee Agreements (CFAs), and a change in respect of a defendant having to pay an additional sum to a claimant where the defendant fails to beat a claimant's Part 36 offer to settle. "The publication of the two SIs by the Ministry of Justice (MoJ) is the starting point of what needs to be put in place, and shows that the MoJ is intent on not losing the 1 April start date for the Jackson reforms," Levene said. "It is imperative that the making document is also published as quickly as possible; to enable solicitors, clients and courts to fully prepare for the changes."

President of the Law Society Lucy Scott-Moncrieff wrote to Justice Secretary Chris Grayling last month, arguing that implementation of the changes be delayed to give the legal profession more time to get to grips with them.

"There is no fiscal urgency to make the reforms quickly and every reason for them to be implemented to a timescale that can be managed by all," she said. "The new regime represents the most significant change to the civil justice system since the Woolf reforms in 1999. It will radically affect the way in which legal advice and representation is funded and involve major changes to the rules. The legal system will need time to assimilate the changes if they are to be implemented smoothly."

Among other changes LASPO will, save for certain exceptions, abolish the recoverability of success fees in conditional fee agreements (CFAs). Currently, a successful party's lawyer can charge a premium, or success fee, of as much as 100% on top of their usual fees to the losing party. From April, this success fee will be capped at 25% of damages in personal injury cases but will remain at a maximum 100% of the solicitors fees in respect of all other cases and appeals. However from April, subject to limited exceptions, any CFA success fee payable by a client to its solicitor will not be recoverable from an opponent, and accordingly   will have to be paid by the successful party out of any damages they receive. As announced by the Government last month, the CFA  change will not initially apply to defamation and privacy actions.

The Act will also remove current restrictions on DBAs, or contingency fees. DBAs are another type of 'no win, no fee' arrangement where the lawyer's fee is related to the amount of damages awarded rather than the work done by the lawyer. Costs recovered in the normal way from the losing side must be set off against the 'DBA fee' due to the winning party's lawyer.

Other changes include the introduction of court costs management in proceedings except for in the Commercial Court and Admiralty Court, a change in the definition of proportionality in respect of costs; new case management rules; amendment to the Civil Procedure Rules 36 related to offers to settle; changes to the rules in respect of disclosure and expert evidence; the introduction of qualified one-way costs shifting in personal injury claims; and changes in the assessment of costs procedure.