MoJ set to consult on Jackson recommendations for CFAs and contingency fees

The government is to consult on Lord Justice Jackson’s recommendations in relation to conditional fee agreements (CFAs) in the autumn “as a matter of priority”, Justice Minister Jonathan Djanogly has announced.

In a written ministerial statement Djanogly said: “CFAs have played a role in giving access to justice to a range of people. However, high costs under the existing arrangements have now become a serious concern, particularly in clinical negligence cases against the NHS Litigation Authority and in defamation proceedings.”

Lord Justice Jackson made a range of recommendations in his report Review of Civil Litigation Costs. These included:

• Abolishing the recoverability of both success fees and after-the-event insurance premiums – a move which would require primary legislation
• Increasing the level of general damages for personal injury, defamation and other tort claims by 10% to assist claimants to meet the cost of the success fees they would then be liable for
• Introducing a regime of qualified one way costs shifting in specified proceedings, including personal injury and defamation.

The minister said the consultation would also seek views on other recommendations in relation to funding arrangements, such as whether lawyers should be permitted to enter into damages-based agreements (DBAs), ie contingency fees.

Djanogly added that the Ministry of Justice is working on other areas of Lord Justice Jackson’s report, but said these would not form part of the consultation. These include the judge’s recommendations in relation to fixed recoverable costs in the fast track and on referral fees.

He said the Legal Services Board was considering the issue of referral fees and that this would inform the government’s position. The conclusions of Lord Young’s review of health and safety law and the compensation culture will also be taken into consideration.

The Civil Justice Council is also to consult on a voluntary code of conduct for third party funders.

Djanogly added that a range of judiciary-led costs and case management work has been continuing since the Jackson report was published. This includes a pilot of more robust costs management in defamation cases and in mercantile, technology and construction cases; a pilot of assessing disputed costs under £25,000 on the papers rather than at a hearing, in Leeds, Scarborough and York County Courts from October 2010; and a pilot to speed up and reduce the costs of expert evidence (through ‘concurrent evidence’) started in June 2010 in mercantile, technology and construction cases at the Manchester Civil Justice Centre.

A Judicial Steering Group is considering the priorities for further implementation of these recommendations, the minister said.