The Association of Personal Injury Lawyers sent the government a formal letter before action last month and confirmed today it had formally issued a JR claim over several aspects of the plans to extend fixed costs.
The Gazette has contacted the Ministry of Justice to ask whether the legal action makes any difference to the intended 1 October start date for the new costs regime.
A consultation published earlier this summer suggested there may be elements that the MoJ wants to look at again. This closes on 8 September, and both parties have agreed that the JR is stayed until three weeks after that point, with APIL having the opportunity to amend its grounds for issuing proceedings.
The JR is based on several challenges to the MoJ plans to extend fixed costs to most civil claims worth up to £100,000.
The rules suggest that clinical negligence cases included in that bracket should be moved to the new intermediate track if ‘both breach of duty and causation have been admitted.’ But APIL points out it is not specified at what stage of the case those admissions must be made, and if they are not made until late in the proceedings, a solicitor will have had to undertake significant work on the case only to then find that fixed costs apply which do not cover the costs of the tasks undertaken.
This, it is suggested, creates a risk that solicitors may not take on clinical negligence cases of this value.
APIL is also challenging provisions relating to vulnerable people which leave solicitors having to cover part of the additional costs incurred. The Court of Appeal ruled last month in Santiago v MIB that preventing a vulnerable party from fully participating in proceedings was not in accordance with the overriding objective.
APIL said it fears that the government has underestimated the impact of the new rules on vulnerable people and that the provisions will interfere with their access to the courts.
Further challenges are based on fixed costs for representation at inquests and an apparent reversal of Court of Appeal case law which allows parties to contract out of fixed costs when there is a dispute in settlement agreements.
APIL added that it would continue to attempt to engage with the MoJ and try to help address the concerns and consequences of what will happen when the new rules come into force.
