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English civil court reforms "inconsistent, time-consuming and costly", says Law Society

Civil courts in England and Wales are increasingly valuing "administration over access to justice" since wide-ranging reforms to procedures and costs came into force last year, the Law Society has claimed.20 Mar 2014

Extracts from its response to a consultation by the Civil Justice Council (CJC) on the impact of the so-called Jackson reforms one year after their introduction were published in its members' magazine, the Law Society Gazette. The professional body said that the reforms had been "inconsistent, time-consuming and costly" and had created confusion for clients.

"The sheer volume of information which needs to be provided, together with the very complicated nature of that information, is completely baffling to most clients," said the Law Society. "Many of those clients therefore fail to grasp the risks they may be taking and the costs which they may be liable for despite the explanations, which have to be repeated several times in many cases, by their solicitors."

"The climate of litigation has changed. Co-operation between solicitors on opposing sides is breaking down as no one can trust anyone not to take the slightest point. It is not putting it too high to warn that the reputation of British justice for fairness is now at very serious risk indeed as a result," it said.

Substantial changes to the Civil Procedure Rules (CPRs), which set out a number of rules and practice directions governing how court cases should be conducted, took effect from 1 April 2013. A new overriding objective requiring judges to deal with cases "justly and at proportionate cost" took effect at the same time. Most parties in civil court actions must now prepare and exchange costs budgets for agreement by the court, with heavy penalties applicable to those that do not comply. Costs recoverable by the winning party are now linked to the court-approved budget.

The CJC is responsible for overseeing and coordinating the modernisation of the civil justice system. Later this month it will host a conference, to be attended by senior members of the judiciary, at which the practical impact of the reforms will be considered. Ahead of this conference it consulted on a number of issues including parties' experiences of costs budgeting and case management to date and access to justice issues, such as whether there has been any change to the types of case being taken on and not taken on by law firms.

According to the Law Society Gazette, those wishing to make a claim in relation to lower-value claims that do not involve road traffic accidents (RTAs) have been struggling to find solicitors that will take on this sort of work, and face paying our substantial sums in legal costs in most cases where they are represented. Those defending personal injury claims in which the new system of qualified one-way costs shifting (QCOS) applies are also claiming to be at a disadvantage because of the relatively small chance that they will actually recover any costs and because of strict court timetables limiting how long they have to prepare their defence, the article said.

The Law Society has also claimed that a number of firms could face claims for negligence from disgruntled clients as a result of strict sanctions imposed for non-compliance with practice directions. Because of this, it said that there was a "significant danger" that firms' professional indemnity insurance premiums would increase this year, according to the Gazette.