Tony Allen & Dr Karl Mackie question why Jackson LJ has shied away from formally endorsing mediation
So what should the mediation world make of the monumental report by Sir Rupert Jackson, apart from marvelling at its clarity and timeliness? Clearly it has most to do with litigation funding, especially conditional fee agreements (CFAs), after the event (ATE) litigation insurance and recoverability of ATE premiums and success fees under CFAs from (usually) defendants.
His general solution is to wind the clock back to 1995-1999 and to require any success fees (capped at 25%) to be deducted from claimant damages rather than being recoverable from defendants, with ATE premiums similarly being payable (if taken out) by claimants but no longer recoverable from defendants in the event of a win. The price which he asks defendants to bear is a 10% increase in general damages in personal injury (PI) and clinical negligence cases, and “qualified” one way costs transfer.
This would mean that claimants will get standard or indemnity costs if they win,
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