31 January, 2017
There is no doubting that 2016 was an eventful year in more ways than one but what can we expect from 2017?
The government seems set on significantly reforming the personal injury sector. At the end of last year the government unexpectedly announced a consultation including a package of measures designed to crack down on minor, exaggerated and fraudulent soft tissue injury claims stemming from road traffic accidents, and a proposal to increase the small claims track limit to £5000 or higher. The government is expected to report by April 2017.
It was also announced last year that the senior judiciary would be developing proposals regarding the extension of fixed recoverable costs. Jackson LJ has been tasked with the job of undertaking a review of fixed recoverable costs by 31 July 2017. A public consultation will follow the review.
Following Briggs LJ's Report on the reform of the Civil Courts structure, the senior judiciary have endorsed his proposals and have confirmed that they intend bring them to fruition. In particular, Briggs LJ recommended the introduction of an online court for claims up to £25,000. The suggested proposals cannot be implemented over night but the government are committed to overhauling the court system.
The issue of proportionality dominated many of the headlines in 2016, particularly following the well-publicised cases of BNM v MGN and May v Wavell Group. The Jackson reforms introduced the concept of proportionality, the idea being that the costs claimed should be proportionate to the dispute. Whilst the theory is to be applauded, the execution has been controversial. The rules do not define what is meant by "proportionality" nor do they offer guidelines for its application. BNM v MGN is to be heard by the Court of Appeal in October 2017 and it is hoped that the Court will provide practitioners with some much needed guidance.
There have been a number of contrasting decisions on the issue of whether both the benefit and burden of a CFA can be assigned from one law firm to another. The case of Budana v Leeds Teaching Hospitals NHS Trust has been leapfrogged to Court of Appeal and is due to be heard in July 2017. The decision is undoubtedly an important one, as it will determine whether the thousands of pre Jackson cases with ATE insurance premiums and success fees will be recoverable from defendants.
It is expected that a new electronic bill of costs will be made compulsory from October 2017 pending a pilot scheme. The Civil Procedure Rule Committee is monitoring the pilot scheme and aims to make a final decision on the mandatory form of the new electronic bill of costs at its meeting in May 2017.
The long awaited new highways code of practice, "Well-managed Highway Infrastructure: A Code of Practice" was released in October 2016. Whilst local authorities have until October 2018 to draft and implement new codes of practice, it is thought that many authorities may chose to go live before this date. However, we are unlikely to see the true impact of the new risk based approach for some years to come.
Finally, the Ministry of Justice has confirmed that they will announce the long-awaited decision on the discount rate this year for personal injury damages. It is likely the discount rate will be reduced, which will increase the value of claims for future losses and consequently the total costs of claims.
2017 looks set to be an interesting year for those operating in the personal injury sector. If speculation is to be believed the proposals set out in the government consultation are a done deal. The reforms will have a profound impact on the personal injury market with many smaller personal firms likely to close. The limit of the small claims track could be increased by a simple amendment of the CPR as early as April 2017.
We await the outcome of notable cases such as BNM v MGN, Budana v Leeds Teaching Hospitals NHS Trust, AB v Main, NA v Nottinghamshire CC to name but a few, and we will keep you fully up to date on all the latest legal cases and news as the year progresses.