Justice agenda

Civil litigation has already gone through enormous change, but the Society’s expert committee still has plenty to grapple with, as the Journal found out from convener Iain Nicol

9th September 2019 | Peter Nicholson

Iain Nicol Compulsory mediation; advance certification of counsel and experts; how the Taylor reforms will play out. These are just some of the big issues facing litigators which the Society’s Civil Justice Committee is currently tackling.

At the helm through these choppy waters is Iain Nicol, the committee’s new convener. A personal injury (and professional negligence) specialist at Balfour + Manson, Nicol understands the concerns he says many solicitors have expressed over these changes.

Take, for example, the rule introduced in April requiring sanction for counsel, and certification of experts, to be obtained in advance, in most civil cases. For some reason there was no advance consultation on this: “It just came out of the blue, and there is a bit of a furore on the go to try to get it revoked.”

It has far-reaching implications, Nicol adds. “Every civil litigation lawyer I have spoken to is against the provisions. It means you have to put in motions every time you need an expert certified. You are effectively showing your hand by telling your opponent who you are instructing and why. That can potentially lead to difficulties in revealing information that shouldn’t be disclosed until the pre-trial meeting. Not to mention the added cost involved.”

Not yet a rule, but promoted in some quarters, is some element of compulsion regarding the use of mediation. Nicol observes that while it features regularly in, say, family or commercial law, mandatory use in personal injury is a different story. “There were 90,000 PI litigants last year, so can you imagine trying to force all that into compulsory mediation? The PI rules are already well suited to encouraging proactive discussion between parties, requiring a pre-trial meeting and so on, so it’s just thought to be unnecessary. And who would pay for it and where would they find enough mediators?”

Prepare for Taylor

The Taylor reforms, however, are finally about to come in. Detailed regulations are being finalised, principally covering damages-based agreements (DBAs), and qualified one-way cost shifting (QOCS). Nicol has it on good authority that DBAs should be here by November. “There are a number of concerns about how these will operate, but we will just have to wait and see how it pans out in practice.”

While DBAs sound good in theory, they have been “basically shunned” in England, as the capped success fees are significantly lower than those routinely charged by claims management companies. Given the requirement that any unrecoverable outlays, including counsel’s fees and reports from experts who are not certified, are paid out of the success fee, and if that is exhausted, from the solicitor’s own pocket, there is concern that the financial risks of litigation fall squarely on the pursuer’s agent. “Firms in England make more money by charging an hourly rate than handling cases under DBAs.”

However, it is QOCS, expected to operate from around the year end, that is causing greater concern. Although in theory it removes the risk of a PI pursuer having to pay a defender’s expenses, there are exceptions, including for abuse of process, or fraudulent representation. Nicol hopes the Scottish courts will apply these narrowly, so that protection is only exceptionally lost. “In England, defendants are routinely asking a court to remove QOCS protection because of fairly spurious allegations that don’t necessarily have much bearing on the outcome of a case. If that was followed here, the client will have no certainty about where they stand on litigation costs, and that’s totally counter to the whole idea of QOCS.”

Funding the system

Nicol gives a qualified yes when asked whether the court reforms have been a success overall. “One problem is the level of court fees in the Court of Session, because they are extortionate, and there is a huge dropoff in business there with litigants just putting everything to the sheriff court.” Contrary to Government predictions that there would be little impact because litigation is so expensive anyway, in other words.

But there is less pressure on the sheriff courts than was predicted ahead of the closure programme. “There were initial teething problems when ASPIC [the personal injury court] was first set up, and it can still take much longer than the Court of Session to get an opposed motion hearing, but, by and large, ASPIC seems to be working well.”

He also adds his voice to those warning of the risks from inadequate legal aid rates. “I absolutely hate saying to anybody that we’re not prepared to take on their case under legal aid, but unfortunately that has to happen sometimes... There is an access to justice issue. The rates have to increase, not to make lawyers richer but to attract or at least retain a better calibre of solicitor in legal aid work, or the whole system will just grind to a halt. A medical or professional negligence claim can be highly complex, with large sums at stake. There are very few experienced lawyers still willing to operate under a legal aid system which has fallen so far behind private fee rates that it is simply no longer a viable option for many firms.”