Have defendants been stitched up?

Before defendants get too excited about the positive recommendations that appear in Lord Justice Jackson's final report on his Review of Civil Litigation Costs it is time for a reality check.  The first point to note is that we do not know which, if any, of the proposals in the report will be implemented or when this might happen.

Secondly, we do know that the new claims process for low value RTAs is due to be launched in April. Now at the time of writing, unless I have missed something, the actual rules have yet to be published.  This is worrying with the start date so close.  Jackson LJ clearly has doubts about the scheme which he expressed in his report: "I have two concerns about the new process in its present form. My first concern is the sheer complexity of the process. Over 80 pages of new material will be added to the rule book, in order to deal with the simplest category of litigation which exists, namely low value RTA claims where liability is admitted. I fear that collectively these procedures might possibly open up a new theatre for the costs war."

Much has been made of the fact that the level of fixed fee is set below the average amounts recovered by claimant lawyers under the current rules.  Good news for defendants.  But, and it may be premature to start looking for problems before we have seen the final rules, one issue looks likely to cause defendants problems unless expressly dealt with in the small print of the new rules.

Under the current predictable costs regime, recovery of costs is governed by the level of damages actually agreed.  If a case settles at a level within the small claims track the predictable costs scheme does not apply.  However, under the new claims process the fixed fee of £400 for stage one, providing notification of the claim to the defendant, is payable at the point when liability is admitted.  At this point there will be no medical evidence.  The scheme is only meant to apply where the personal injury element of the claim is at least £1,000.  The Ministry of Justice's report recognises that some claims may be valued at the outset as having "reasonable prospects" of exceeding £1,000 but it later becoming clear that they do not.  At that stage the claim will leave the process.  However, I can see no mention of defendants getting their £400 back.  Am I being incredibly cynical in thinking that there will be a very high number of claims that claimant lawyers value as having reasonable prospects of recovering over £1,000 only for these claims to undergo a surprising downwards revaluation or even disappear entirely after the £400 has been paid?  There is no time limit under the scheme for obtaining a medical report and defendants may only discover several years down the road that they have been stitched-up in tens of thousands of claims.