Insidious legislation and ‘Orwellian double-speak’ will come under fire from the Association of Personal Injury Lawyers’ (APIL) incoming president Jonathan Wheeler this week.
At the organisation’s 25th anniversary conference in Newport, Wheeler, pictured, is set to single out the Criminal Justice and Courts Act for its ‘one-sided, draconian treatment of claimants’ who are considered to be ‘fundamentally dishonest’.
Section 57 of the Act, which received Royal Assent in February this year, provides that if, on an application by the defendant, an otherwise successful claimant is found on the balance of probabilities to have been‘fundamentally dishonest’ in relation to a claim, said claim must be dismissed unless the court is satisfied the claimant would suffer substantial injustice.
If found guilty of fundamental dishonesty, not only will a claimant recover no damages but they would also lose the costs protection offered by qualified one-way costs shifting (QOCS), as a court finding fundamental dishonesty for the purposes of section 57 will find it for the purposes of Civil Procedure Rules 44.16, which allows for the displacement of QOCS costs protection, too.
‘What about defendants who pursue “fundamentally dishonest” defences? Who say they haven’t got crucial documents to disclose when they have? Who defend a claim for child abuse against a priest by claiming that, at the age of 15, my client consented to being raped by a 61-year-old man of the cloth? Is this an honest defence?’ Wheeler will ask.
‘How about the defendant who purposefully sets out to delay a settlement brought on behalf of a terminally ill claimant, because it would be cheaper to pay out on the claim when they are dead. Why aren’t such defendant practices also caught by legislation?’
Wheeler will also highlight the ongoing concerns that recent hikes in court fees are ‘a tax on clients’ misery’. Currently, claims valued at more than £10,000 are subject to an upfront levy of 5 per cent the claim value.
‘Where’s the principle in that?’ Wheeler will ask. ‘That is increasing the cost of litigation. The government call these “enhanced court fees”. Enhanced means “improved”. What kind of Orwellian double-speak is being used here?’
APIL has long condemned the coalition government’s move and described the court fee hike as ‘outrageous’. The organisation’s former president, John Spencer, said the government’s claim that fees are not a major factor in a person’s decision to go to court was completely disingenuous.
Delegates at APIL’s annual conference will also be challenged by Wheeler to embrace change to become more efficient, and to raise the bar on their quality of service.
In relation to the Solicitors Regulation Authority (SRA)’s Competence Statement and new training regime, Wheeler will say: ‘The SRA has dictated that we no longer need to record compulsory CPD hours. As a profession, that must not mean we should relax standards. We should raise them.’