To people working in the Law, the Jackson review is big news. We’re not talking about Michael’s post mortem here, our Jackson is Rupert, and he is very much alive.
Lord Justice Jackson was commissioned in late 2008 to look into the way civil (i.e. not criminal) cases were funded. His remit took in two areas – the cost of litigation and access to justice.
In January 2010, Jackson LJ’s final report was published. Prelims and final together get towards the ‘small deciduous forest’ category of publications.
So we have a set of recommendations which the (or given current timings a future) government will look at and decide what to do with.
Over the next few weeks I’m going to look at some of the bits of Jackson, where the cure will be good, and where it may just kill the patient.
But first – week one – history.
Remember Legal Aid? In the 1940’s, while William Beveridge was tackling his 'giant evils', in a report that would lead to the NHS and the Welfare State, the lawyers were also busy. The Rushcliffe Report in May 1945 led to the enactment of the Legal Aid and Advice Act (1949).
The aim of the Act, which came into force on 30th July 1949, was that no-one should be ‘financially unable to prosecute a just and reasonable claim or defend a legal right’.
Now, it won’t surprise you to know that, despite this rapid legal action, it took a little longer for things to get going. Nevertheless, the ambit and effectiveness of Legal Aid grew over the next forty years. So, unsurprisingly, did the cost.
In an effort to rein in what was seen as vast expenditure (well if you think that was vast, wait to see what came next) the government, by means of the Courts and Legal Services Act 1990 allowed for Conditional Fee Agreements.
You’ve seen these on TV, in the middle of some crappy morning chav-fest, advertised as ‘no win-no fee’. You know you sneak a peak when you’re working from home. ADMIT IT!
The idea is economically simple. Let a lawyer charge a bit (technical legal term) more in case that she wins and she can afford to not charge people at all in cases where she loses. Allows access to law for good claims and cuts out Legal Aid at a stroke.
Of course, if you know your English legal system, you know that costs usually follow the event. This means that the loser usually pays most of the winner’s costs. So, it’s all very well not having to pay your own solicitor – you’ll just be bankrupted to pay the other side’s solicitor, barrister, expert etc.
Here it starts getting really odd, because someone came up with insurance for this, called After-the-Event or ATE. Now, if you know insurance you’re thinking ‘car, house – buy it in case the worst happens’. I know you’re not thinking ‘a good way of getting the better part of my holiday paid for when my dad’s Rolex is stolen, honest’ because you’re reading this blog, and not watching daytime TV. This insurance is that you know you’re injured, but Mr Insurer will pay the costs if you lose (and take a premium for his trouble). To me, whilst this may be called insurance, the word I’d use is gambling, but what do I know!
So, you get your solicitor on a CFA, you buy some ATE and sit back and let the case happen:
you lose – you pay nothing, walk away not exactly happy, but no poorer than you were.
you win – you get your damages, but you have to surrender part of it to pay the solicitor’s mark-up (the ‘levy’ to deal with the losers, and the ATE premium.
Now, some people don’t like this ‘deductions’ business – especially when Watchdog or its 1990’s equivalent gets wind of some poor sod being left with Bus Fare Home after everyone else has taken their share.
So, the system was changed to deal with this, and that’s where the whirlwind began. In the interests of suspense etc, I will be leaving that for the next instalment.
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