Friday 19 October 2012 by Catherine Baksi
Implementing the Jackson costs reforms will inevitably lead to satellite litigation, the master of the rolls has warned. He urged courts and lawyers to 'do what they can' to minimise it.
In a wide-ranging speech at the Law Society yesterday, Lord Dyson (pictured) said that the legal profession faces a period of 'unprecedented change' with the implementation of the Jackson reforms; the Legal Aid, Sentencing and Punishment of Offenders Act, and the Legal Services Act (LSA) as well as changes to the civil procedure rules.
'Each of these reforms on their own would present a challenge to the courts and the legal profession' he said, but taken together they constitute a 'massive change'.
Warning of the risk of unintended consequences, he said: 'Each carries the risk that, rather than improving access to justice, they will weaken and undermine it.' He called on the legal profession and judiciary to work together to ensure that does not happen.
Dyson warned that the reductions to legal aid will inevitably cause an increase in the number of litigants in person, putting increased pressure on courts at a time when budgets are being reduced.
He welcomed the introduction of fixed fees for fast-track personal injury claims, but said he hoped this would be extended and applied to all fast-track cases. In due course, he said, consideration may be given to introducing a fixed-costs regime in certain multi-track cases.
The former Supreme Court justice, who took up his new appointment two weeks ago, scotched 'whispers' that it would not be possible to complete the implementation of the Jackson reforms on schedule. 'Let there be no doubt about it, the reforms will come into force next April,' he said.
Paying tribute to the work done by Jackson, Dyson warned of the risk of 'time-consuming and costly' satellite litigation if the new rules are not drafted to ensure clarity and applied by the courts consistently.
He described satellite litigation as the 'bane' of any civil justice system, saying that it has a negative impact on the immediate litigants involved in the litigation and on the courts, as well on the ability of other court users to obtain timely access to the courts.
'While it is inevitable that new rules and procedures will give rise to some satellite litigation, it is vitally important that the courts and lawyers do what they can to minimise the risk of such litigation,' he said.
Dyson said that he hoped that the court would not be called on often to adjudicate on the reforms, but when it is, he said, it will need to 'speak clearly through its judgments' to explain how the reforms are intended to operate.
'If the Court of Appeal fails to provide consistent guidance, no one should be surprised if that breeds more litigation: a lack of clarity and consistency on its part will only generate confusion in the county courts and the High Court and amongst the profession, and ultimately it will undermine the aims of the reforms,' he added.
Once the reforms have been implemented, Dyson said the Ministry of Justice will need to monitor their effects and gather evidence. 'If the reforms work as they are intended to, then we should be able to obtain evidence of costs reducing over time,' he said.
But where it is apparent that there are unexpected flaws and consequences or that an aspect of the reforms is not working, Dyson said that rather than 'slavish adherence' to them, steps should be taken to identify the source of the problem and rectify it.
Dyson added: 'I do not wish to give the impression that I do not have faith in the reforms. That is very far from being the case. I fully expect and anticipate that the reforms will succeed.'
Elsewhere, he said that external investment in law firms under the LSA may be a 'benign development' but he warned against complacency towards the risks posed to the public interest if external investors 'set the parameters of practice in their favour rather than in the consumer's best interests or the public interest'.
He said: 'A complacent attitude to inherent risk was, in all likelihood, a significant contributory factor in the financial crisis the effects of which we are still feeling. We cannot afford a similar crisis in the provision of legal services.'