Predictable costs

The latest Civil Justice Council mediation initiative is to see whether agreement can be reached on employer’s liability success fees, in the light of the experience of the agreement on success fees in low-value road traffic accident cases. The DCA is particularly interested in fixed or predictable costs in employer’s liability cases and the senior judiciary is thought to regard them as the next step. Paul Fenn and Neil Rickman have already produced a report on the costs of low-value employer’s liability claims. According to Litigation Funding of February, the DCA is said to have accepted the solution of transplanting the client care rules from the CFA Regulations to the Solicitor’s Practice Rules now that the system has been in place for some years, as suggested by the Master of the Rolls. The Civil Justice Council has set up a working group to consider the implementation of abolishing the indemnity principle. If it is still considered that abolition requires primary legislation, the group will investigate the use of the Civil Procedure Rules to achieve this. According to David Marshall, president of APIL also in Litigation Funding of February, the Civil Justice Council is arranging further negotiations in respect of other categories of claim. Similar principles as before will apply in calculating success fees, but success and failure rates and costs will, of course, be different, and this will lead to different success fees, which may or may not be staged or varied by case size or type. He continued: ‘Will it work? The scheme gives certainty for both sides. The acid test will be whether access to justice is maintained, or whether lawyers introduce their own “risk premium” or comfort zone within the figures and reject more difficult claims. But the most important question for any lawyer accepting work on a CFA basis should always have been: “Will this case win?” rather than: “What success fee can I get away with?” Under the scheme, if the lawyer’s judgement that the case will win has to be tested at a trial, he is entitled to a 100% success fee.’