Post Blog: Jackson and the Cost of Justice

Article, PostApril 2012

Legal / Disputes

Rob Williams, Head of Costs at Weightmans, and James Stanbury, partner at RGL Forensics, explain how to cut legal costs in a pre-Jackson world.

Lord Jackson. Like him or loathe him? Insurers’ opinions are likely to be divided for some time. On one hand he's attempting to bring in reform that will help create a level playing field for defendants in a claims process that has become too far slanted towards the claimant.

On the other hand the MoJ’s continuous drip feed of announcements on civil litigation reform sees the defendant community tying itself in knots and trying to take a step back to see how these differing aspects of reform will look as a whole.

But however costs are being addressed at a policy level, some simple considerations can be taken on a practical level to ensure that insurers consider fees, not just in relation to legal spend but with experts.

The role of experts in the litigation process has significantly changed over the past decade or so as the emphasis on pre-action protocols has led to more 'front loading' of claims where experts can be involved at an early stage.

However, in practice, experts, especially in the forensic arena, are often considered only after liability is established. This is no particular surprise as the litigation process encourages this to some extent – liability first, quantum second.

As such, experts can find themselves appointed by the defendant less than a week before mediation or a deadline for serving a report. Although helpful for containing costs, such an approach does not always help the expert to fulfill his or her role and brief.

Current dispute resolution methods and pre-action protocols can encourage better relationships between solicitors and their experts early in the claims process, but there are limitations. In most cases, expert evidence is the last step as this is the only point where all evidence is available to the experts.

Jackson’s proposals encourage the early discussion of quantum – as already enacted in a recent pilot in the Technology and Construction Court. The scheme required lawyers involved in high value litigation to get to grips with budgeting for their clients, the court and their opponents by price tagging parts of a case within their overall case budget.

This should become a matter of routine for lawyers across many disciplines, who will have to factor their experts’ involvement into their budgets at an early stage.

Forensic experts should be on hand to help solicitors assess levels of quantum before embarking on a claim and, in turn, this assessment will impact the way in which the claim is progressed, since there is little point fighting a claim if the costs of doing so are higher than the value of the claim in the first place. No doubt many practitioners can point to cases where this has proven so.

While insurers may feel they’ve heard enough about civil reform policies, commercial niggles will also influence this new approach. Insurers need to know that their cases are being handled on a risk/cost/reward analysis, and a proper examination of these may well need expert assistance.

 

As appeared in Post, April 2012.

Author


Additional contributor:
Rob Williams, Head of Costs, Weightmans

More News and Insights

Article

November 2016

New Rules for the Taxation of Dividends – what does it mean for Income Protection Claims?

In April 2016 new rules were introduced regarding the taxation of dividends and the notional ‘Dividend Tax Credit’ was abolished. While the new system is much simpler and more akin to the taxation of other incomes, the below demonstrates how it could lead to individuals manipulating how they extract income from their companies to minimise their tax liability, which could, in turn, impact the assessment of pre- and post-incapacity earnings for the purposes of assessing an income protection claim.

Article

November 2016

Diary of a forensic accountant: Part 3

On a typical day, there is a wide variety of different tasks to be completed, from preparing calculations to writing reports to attending meetings, interacting with owners of a range of businesses, senior claims professionals from the insurance industry and various representatives from the legal profession.

News

October 2016

Q&A: When management hanky-panky is suspected, should a board hire a forensic auditor?

In the Los Angeles Times, Hank Kahrs takes on a question about potential mismanagement of a board's finances.

iStock 77034745 XLARGE Cell Phone at Night

Article

October 2016

Booming or Busting: Samsung's Trouble with Quality

Since its launch in August, Samsung’s rollout and subsequent recalls of the Note 7 have been severely affected by quality and safety issues as a result of the lithium-ion batteries overheating, and in some reported incidents, even catching fire.

Every case is unique – talk to RGL today

Get in touch with our London Office

08:09 am

Local time