ODR, Fixed Costs and Personal Injury Claims Process reform: A Perfect Storm for Access to Justice?

Bates, John (2017) ODR, Fixed Costs and Personal Injury Claims Process reform: A Perfect Storm for Access to Justice? In: SLSA Annual Conference, 5 - 7 April 2017, Newcastle University.

Slideshow (Presentation slides) A_Perfect_Storm.pptx - Presentation Download (3MB)

Abstract

In January 2017 there were three significant developments presenting real challenges for access to justice for those injured as a result of negligence.

First, the Lord Chief Justice and the Master of the Rolls issued a joint statement endorsing the Final Report of Lord Justice Briggs’ Civil Courts Structure Review, which they described as ensuring ‘that the overall system for civil justice is improved for its users in a coherent as well as comprehensive manner.’ Chapter 6 of the Report recommended the introduction of an Online Court, eventually to be made compulsory for cases within its jurisdiction, and with a fixed recoverable costs model.

On the same day, the Ministry of Justice closed its consultation on ‘Reforming the Soft Tissue (‘Whiplash’) Claims Process’ which included controversial proposals to remove the right of injured people to claim damages for some types of pain, suffering and loss of amenity, the introduction of a fixed tariff for damages for other injuries and an increase in the scope of the small claims track. The Government’s stated aim was to implement the reforms as soon as possible.

Finally, Lord Justice Jackson commenced his review of fixed recoverable costs as an extension of his previous Review of Civil Litigation Costs, commissioned by the Lord Chief Justice and the Master of the Rolls. In an earlier speech, Lord Justice Jackson had proposed an extension of fixed recoverable costs to claims with a value of up to £250,000.

How will this concatenation of reforms impact on access to justice in personal injury and clinical negligence claims, where individuals face well-resourced tortfeasors, in what has been described as a ‘paradigm instance of litigation in which the parties are in an asymmetric relationship’?

This presentation aims to explore some of these topical issues.

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