Fundamental dishonesty (on the part of claimants, rather than lawyers) has dominated the personal injury landscape this year. This increasingly deployed weapon has claimants’ representatives up in arms at its perceived overuse and defendants’ representatives champing at the bit. This pithy phrase has resulted in no fewer than six High Court decisions in the last year, and one decision from the Court of Appeal. Next year is unlikely to be much different. The effects of Section 57 Criminal Justice and Courts Act 2015 are far-reaching, with the claimant losing all their damages if the application is successful, and the claimant’s lawyers receiving no costs. Claims for gardening and other more minor elements of a claim are unlikely to have ever been as carefully scrutinised as they are now. Whiplash claims continue to occupy much of the junior personal injury practitioner’s time, despite the introduction of fixed costs, and the Courts have shown themselves keen to stamp down on potentially fraudulent whiplash claims.
The satellite litigation flowing from the 2013 reforms continues with decisions on QOCS, proportionality and fixed costs. Low and middle-ranking barristers are kept busy in the Courts doing CCMCs with mixed views as to the efficacy and utility of the budgeting process. However, budgeting appears to be here to stay, although the proposed introduction of an intermediate track will see the end to budgeting in lower-value multi-track claims.
The discount rate continues to ensure that the market in crystal balls remains buoyant. Some guidance as to its new reduced level has been provided, but its likely date of change remains the subject of debate. The proposal to review it regularly will ensure a repeating pattern of the suspension of Joint Settlement Meetings and applications to adjourn trials. Meanwhile the quantification of accommodation claims causes ongoing headaches after the last appeal was compromised before guidance could be given. It is hoped that the Court of Appeal will have been able to revisit Roberts v Johnstone by the time the text for the next edition of Chambers & Partners is prepared, permission to appeal on this issue having already been granted in the case of Swift v Carpenter.
Personal injury practitioners have noticed the impact of the financial squeeze on the Courts with over-listing continuing to be a real problem in some Courts. Cases are regularly taken out of the list the day before trial because of a lack of judges. More judges have been recruited this year but there are still gaps to fill, and more money needed for the system. The adjournment of trials at short notice has a detrimental effect on litigants and lawyers alike, and delays, if not denies, access to justice.