The 'Jackson Reforms' in Civil Litigation and the Impact on the Expert Witness (Part 1)

The so-called 'Jackson Reforms' - the changes in the civil procedure process introduced with effect from 1st April and 31st July 2013 - have recently been described as creating 'the most chaotic period in legal costs and funding since the concept of legal costs was codified in the Statute of Westminster 1275'. The lives and business practices of lawyers, and particularly those dealing with injury claims (personal injury, disease and clinical negligence), have been and will be fundamentally changed by the reforms, and the access of an injured person to professional support in bringing a claim will, in some areas, be substantially restricted.

The impact of the reforms on the medical expert providing reports in civil litigation is both direct and indirect. Some reforms directly refer to the use of medical experts in litigation, while others will affect the approach to the use of medical expert evidence in litigation.

Costs and the 'Jackson' reforms

For lawyers, the principal impact of the reforms is on the costs which will be recoverable on successfully concluding a claim. At the heart of the reforms is an amendment to the 'overriding objective' in part 1 of the CPR, and related amendments to the rules relating to the assessment of the costs that a successful party can recover at the end of the case.

Proportionate costs

The overriding objective, which is to be considered at all stages of a claim and in relation to all decisions on case management, is amended to state that it is not only 'to deal with cases justly' but also now 'at proportionate cost'. It is expressly provided that that requires dealing with a case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the case and the financial position of each party. How the courts will interpret that, and whether a ratio between the sum in issue and the 'proportionate' costs which may be incurred will develop, we wait to see. It is however intended to reduce the cost of litigation, and most probably to do so to a significant degree.

Costs budgeting

At the first court hearing in any claim commenced after 1st April 2013, the court is required to set a budget for the whole claim. The parties are required to provide a detailed breakdown , in accordance with a court form (in spread sheet style), of the estimated costs for each stage of the proceedings through to trial, however unlikely the course of a relatively short hearing and with the minimum amount of investigation, set the budget for each stage, and for the whole claim. Subject to the court subsequently approving a variation because an assumption on which the estimate has been provided has proved incorrect through no fault of the lawyer, that will almost certainly be the basis for the costs recovered at the end of the case by the successful party. The court does not have to identify which particular items are disapproved or reduced, but can simply state the global sum approved for the particular stage. Therefore, if for the stage 'Expert Reports' the court decides to allow only half the total sum claimed on the grounds of proportionality, it will be for the solicitor, counsel and expert to resolve how, if successful, they are respectively paid from the costs eventually recovered. The expert is entitled to his contractual fee from the solicitor in any event, but the pressure on fees from this process may be considerable. 

Estimates of expert costs

Experts will therefore have to provide estimates of their likely fees through to trial prior to this first hearing, or rely on the lawyers to do so for them, and the likelihood is that, particularly in more modest value claims, the fees of the medical expert will not be recovered from the losing party in full. In that case, the expert's contractual right to his/her fees will be satisfied (assuming it is) by payments from the lawyer or by the client (out of damages).
Estimates of fees will need to cover provision for:

1. providing an initial report;
2. re-examining the client and preparing a supplemental report;
3. reviewing reports prepared by other experts;
4. reviewing further documentation ;
5. reviewing surveillance evidence
6. replying to questions from the opposing side;
7. attending case conference(s);
8. attending joint discussions and preparing a joint statement;
9. attending trial to give (and if appropriate, listen to) evidence. 

In providing an estimate, the expert should make clear the assumptions on which the estimate is made, for example the volume of medical records which will have to be read, the hours of surveillance material to be reviewed and the number of days the expert is likely to be required at court for the trial (giving evidence and hearing the evidence of others).

Funding arrangements

Funding arrangement under which claimants in most injury claims can employ a lawyer are changed so that the success fee under a conditional fee agreement (a 'no win, no fee' arrangement) will no longer be paid by the losing party, and the insurance premium on an insurance policy that was taken out to protect the claimant from a liability for the other sides' costs in the event of losing, is no longer generally necessary or recoverable. Instead a claimant may have to pay out up to 25% of the damages recovered (for the injury and past loss) to the claimant's own lawyer as a success fee (to help fund the cases the lawyer loses) and up to the whole amount of damages in satisfying a costs' claim  by the opposing party, although the starting position, to which there are a number of exceptions, in an injury claim is that a losing claimant no longer pays the successful defendant's costs (so called Qualified One-Way Cost Shifting or QOCS). In the case of a fraudulent claim, or if a defendant's Part 36 offer of settlement is not bettered at trial, this protection is lost.

Fixed scale costs

The pressure on legal costs will be greatest in claims assigned to the Fast Track where damages do not exceed £25,000. Until April 2013 road traffic claims up to £10,000 were dealt with through an online portal with a scale of fixed costs recoverable by the successful claimant's lawyer, falling out of the portal (and into court) if liability was disputed. For accidents after 31st July 2013 virtually all claims up to £25,000 for road traffic accidents, employers' liability claims and public liability claims will start in the portal, and should they 'fall out' they will be caught by a scale of fixed costs. This will, in future, apply to the majority of all injury claims which are made. These costs are fixed at a level in relation to smaller value claims that are significantly less than before April and which might well make them unattractive to many lawyers who may well no longer run such claims at all.

Under the portal, the claimant submits medical expert evidence in a standard report form provided under the scheme, or in a report containing the information required in that report form, and medical evidence is generally expected to be in a single report, with the defendant not obtaining medical evidence of its own. The report must identify the relevant medical records which will be served by the solicitor with the report.

Offers to settle

The provisions in the CPR Part 36 relating to offers to settle have always been important in putting pressure on the parties to settle because of the implications in terms of costs in failing to accept an offer which is not subsequently bettered. The reliability of the expert report in assessing the risks of a claim and its likely value is crucial in assessing such offers. Additional 'teeth' have been added to offers made by claimants. From April 2013 if the defendant ends up paying no less than the sum offered as settlement by the claimant, the defendant will pay an additional sum to the claimant of 10% of the amount awarded (reducing on larger sums to 5% and capped at £75,000). On the other hand the new funding arrangements mean that a claimant who fails to do better than an offer from the defendant will pay the defendant's costs, since the offer was made, out of his/her damages.

Case management

An expert does not always (some would say, ever) see a copy of a court order relating to expert evidence. Sometimes the impression may be given to the expert that if the report or answers to questions or the joint statement is received by the solicitor a little late it does not really matter. An amendment to CPR 3.9(1) is likely to change that. From April 2013 if a party (and that includes a party's lawyers or experts) fails to comply with a court rule, practice direction or order, in deciding whether, for example, to extend time for the doing of something or for the provision of a document, the court will take into account 'the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions and orders'. There is therefore a substantial risk that a failure by an expert to comply with a court timetable will result in the claim, or the defence, being struck out, or permission to use the expert being withdrawn. The expert must therefore make sure that he/she is aware of court timetables relevant to their involvement in the litigation, and that they have appropriate insurance in place to cover such an unfortunate default.

The future for expert evidence

The pressure on costs means that lawyers will need to deal with cases more quickly and efficiently, and often with a lower  grade of fee earner. The rule changes will increase the  necessity  for high quality, reliable and readily understood medical reports which address all of the matters relevant to the legal issues in the case, and which demonstrate the internal reasoning process , so that the reports can be used efficiently and with confidence within the litigation by lawyers. The expert who provides such evidence should develop a reputation which will assure a substantial medico­ legal practice. 

PART 2 to follow in the next edition of JTO

Giles Eyre is co-author of a manual for medico-legal experts and those instructing them, 'Writing Medico-Legal Reports in Civil Claims - an essential guide' (2011) and co-presenter of the e-learning programme 'Medico-Legal Report Writing (Core Skills)' (www.prosols.uk.com). He frequently gives seminars and workshops for medical experts in medico-legal report writing, giving evidence and other medico-legal issues. 

Giles is a barrister specialising in personal injury, disease and clinical negligence claims. He is mediator and a member of the CEDR Solve Lead Mediators Panel. He was appointed a Recorder in 2004.

Giles is a contributing editor to 'Clinical Negligence Claims - A Practical Guide' (2011) and 'Asbestos Claims: Law, Practice and Procedure' (2011), both published by 9 Gough Square. 

Author: Giles Eyre, Retired Barrister and Mediator, Co-author of the Manual for Medico-legal Experts

This article was first published in the January 2014 edition of the JTO.