The MoJ and litigation reform

I am not sure what to make of yesterday’s article in the Lawyer. Chaos as MoJ scuppers litigation reform is the headline. Below that, the sub-heading shouts Judges and politicians at loggerheads as Jackson review kicked into touch. My difficulty is that nothing in the article bears out the second half of that assertion.

Judges and politicians at loggerheads? Well, yes, of course. They have very different characteristics and priorities. The senior judges are decent, honest people with a genuine and pressing wish to improve access to justice and to make litigation the affordable right of every business and individual. Not much in common with New Labour then, beyond the lip-service paid by giving an otherwise unknown politician the label “Access to Justice Minister” .

Chaos at the MoJ? All government departments are in chaos at the moment, and will be until the election. Justice Minister Jack Straw is one of the few ministers to whom one could lend a fiver and expect to see it back, and the MoJ staff are of a rather higher quality than we generally expect from our civil servants. But now that members of the Cabinet discover what government policy is for today by watching the Prime Minister on YouTube, it is not surprising if their departments are a little confused.

Reform of the personal injury rules on hold? A letter sent by the MoJ but then said to have been sent by mistake? All possible, but not necessarily warranting the headline “MoJ scuppers litigation reform”. A more sober account in the Law Society Gazette of 30 April has the headline MoJ delays implementation of new accident claims processing regime and gives an account of disagreements between claimant and defendant groups which have proved impossible to resolve.

Both stories agree that the Civil Justice Council was due to mediate between the different interest groups on the day that the MoJ letter came out, and it does seem poor timing to intervene just at that moment. Why not a week before? Or wait and see what emerges from the mediation? At least one of the parties involved, the Association of Personal Injury Lawyers, seems relieved to have been given more time. I would want to know more before screaming that the government had “scuppered” anything. “Screwed it up”, perhaps, but that is true of pretty well everything the government touches at the moment, even where no hidden agenda can be detected.

And so the last point in the Lawyer headline – “Jackson review kicked into touch”. The article reports that Lord Justice Jackson is due to deliver an interim report this Friday and that the final report is not due until December 2009. That much is true – and was what the original terms of reference required. What warrants the idea that it has been “kicked into touch”?

The sentence which mystifies me most, however, is this one:

However, with PI reform on hold and any implementation of Jackson LJ’s review unlikely to come into effect until early 2010 (an election year), there are grave ­concerns about whether it will be of any use at all.

What on earth does that mean? Lord Justice Jackson is not and never has been due to report before the end of 2009. One would have grave misgivings about any implementation in “early 2010”, election year or not, and even in the hands of a competent government. It is not even clear that Jackson will make any recommendation requiring primary legislation or government time but, if we assume that he will,  we would not be leaping straight from recommendation to implementation on any basis. NuLab is no great believer in consultation (real consultation, I mean, as opposed to focus groups and all that crap) but it seems unlikely that Gordon Brown (if he is still with us by then) will leap onto YouTube to announce immediate civil justice reforms without some discussion (to say nothing of drafting).

I yield to none in my contempt for this government’s attitude towards civil justice and towards the judiciary. I can readily believe that New Labour is entirely focussed on its election prospects and there is no step too low, too dishonest or too underhand which it will not consider to that end. I really cannot see, however, what it has to gain by kicking the Jackson review into touch. Nor does the Lawyer article provide anything which supports the headline to that effect, still less justify the quoted reservation as to “whether it will be any use at all”.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Access to Justice, Civil justice, Lord Justice Jackson, Ministry of Justice. Bookmark the permalink.

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