Jackson LJ’s plans for CFAs could have unlawful impact
Leading counsel’s opinion has warned that Lord Justice Jackson’s plans to restrict conditional fee arrangements (CFAs) could be unlawful because of their impact on victims of serious accidents.
The government’s consultation on civil costs, which closed this week, broadly accepted Jackson LJ’s recommendations that damages be increased by 10% and that claimants pay some of their legal fees out of their compensation.
According to counsel’s opinion obtained by the Association of Personal Injury Lawyers, however, these proposals could contravene Arts 6 and 14 of the European Convention on Human Rights because disabled people could be denied access to justice.
The opinion, written by Nigel Pleming QC and Colin Thomann of 39 Essex Street, warns that the government’s proposals “seem to us to place claimants who have suffered the most complex personal injury at a particular disadvantage as regards their prospects of securing adequate legal representation, financial protection from adverse costs consequences, and adequate compensation to permit a return to active daily life”.
It later adds: “It follows that there are real prospects of a Convention based challenge to the funding reform proposals.”
Lord Justice Jackson has criticised the government for not seeking to implement his proposals in full. The Ministry of Justice green paper proposes allowing recoverability of after-the-event insurance premiums where they relate to disbursements and allowing damages to be increased in CFA cases only. Jackson recommended abolishing recoverability and increasing damages generally.
In a letter to Ken Clarke, the justice secretary, last month, Jackson LJ said the amendments “would create perverse incentives and undermine the structure of the reforms”.
Christopher Hancock QC, chairman of the Commercial Bar Association, warned the proposals could lead to “acute” problems for litigants. “The combination of cuts to legal aid and plans which will impact severely on funding of smaller cases must not be allowed to exclude whole categories of parties from the ability to seek legal redress,” he said.
