Feeling cheerful? Good, we’ll soon change that. Whether Claimant or Defendant on disrepair, judicial review or other CFA funded claims, the world is about to shift on its axis somewhat, and both sides are going to have to rethink their positions and tactics.
The Government’s response to the consultation on reforms to civil litigation and costs (the Jackson reforms) has now been released.
The full response can be downloaded here [pdf] and the associated impact assessment is here [pdf]
In short, the Government intends to go ahead with its original proposals. Expect legislation soonish.
From the perspective of housing practitioners, some things are not at all clear. Others are.
While a 10% uplift in general damages is envisaged, in part to replace the success fees payable by the Defendant, this is referred to at some points as being solely damages in tort (personal injury), which would not apply to disrepair, which is contractual. However, at other times, the reference is to general damages or non-monetary losses per se. Whether the 10% uplift in damages will apply to disrepair will have to be clarified in the forthcoming legislation.
However, disrepair CFA success fees will not be recoverable from the Defendant. Given the level of disrepair damages, this makes success fees difficult in such cases, even though, unlike personal injury, the success fees are only capped to 100% of costs. The same issues apply to the proposals to make contingency fee agreements lawful.
ATE insurance premiums will not be recoverable from the Defendant. There was an emerging market in disrepair ATE insurance, but that protection for the claimant client will not be available under the proposals, unless paid for by the client.
Further, qualified one way costs shifting, where the Claimant is largely not liable for Defendant’s costs is not initially to be introduced except for PI/Clinical negligence matters, so not to be brought in for disrepair cases or indeed judicial review, at least at first. There will still be Claimant liability for the Defendant’s costs on a failed or lost claim.
There is a change to Part 36 rules proposed, making Defendants liable for a further 10% of the value of a claim in damages if they failed to accept a reasonable offer by the Claimant, even if the Claimant did not beat that offer at trial. There may be a further or different sanction for non-monetary claims. This will change calculations on both sides on Part 36 offers, but would seem to favour the Claimant, making it harder for the Defendant to undercut a reasonable offer.
In view of the Government’s intention to take many disrepair claims out of legal aid scope, these proposals make the situation complicated. The proposals seem to me to completely ignore the particular circumstances of housing matters, where the subject matter of claims is generally an injunction for works, not purely damages (general or special). The basis for the calculations and balancing, such as it is, are wholly predicated on damages only claims.
And then, just when we’d worked our way through that, yet a new consultation arrives. Yes, reform of County Court litigation. Closing date 30 June 2011. Highlights among the proposals – raising the small claims limit from £5,000 to £15,000; compulsory mediation for small claims; and compulsory ‘mediation awareness’ for higher value claims. It has been a long day, and it isn’t often this happens, but words fail me…