FOCIS members respond to Government Green Paper

FOCIS members act in catastrophic injury claims, including spinal and brain injury and fatal accidents. Data collected by our members shows:

  • 93% of catastrophic injury victims will be worse off as a result of implementation of the Jackson reforms;
  • Clients will lose out by nearly £30,000 on average;
  • Clients will have to find on average £30,526 to fund disbursements;
  • The solicitor's success fee in a catastrophic injury case averages 44%;
  • Solicitors require an average success fee in a catastrophic injury case of 39% to achieve revenue neutrality;
  • Defendants in our sample recovered more in costs in failed cases than they paid out in ATE premiums in successful ones.
The current system of recoverable success fees and ATE premiums enables access to justice. The cost of funding is spread throughout the class of defendants as a result of compulsory liability insurance.

The changes proposed are fundamental. To proceed with them is a tremendous risk which will inevitably create unintended consequences. It is particularly risky to gamble with access to justice at a time when the government also proposes that CFAs fill the inevitable gap left by their concurrent proposals to reduce legal aid. The government proposals would create an untried and untested new regime which may not deliver access to justice but which will:

  • create enormous uncertainty;
  • inevitably lead to satellite litigation;
  • leave catastrophic injury victims worse off.
FOCIS instead would recommend implementing Jackson Alternative 1 which has the great advantage of building on the successes of the CFA regime, whilst meeting its perceived problems. With regard to success fees in catastrophic injury cases, FOCIS proposes that if the case is completely settled, or all issues other than the assessment of the quantum of damages are settled, the success fee applicable to all costs incurred in the case should be staged as follows:

  • Up to end of protocol period: zero
  • Between the end of the Protocol Period and the issue of proceedings: 25%
  • Between the issue of proceedings and listing for trial (or 60 days prior to a fixed trial date whichever is later): 50%
  • Between listing/60 days prior to trial and the commencement of trial: 75%
  • Trial: 100%

The full response and corresponding documents are available to download.

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