I read Tom Jones' piece (Comment, 1 March) with interest. I have always been impressed by his intellect, but sometimes I feel that Tom cannot help but engage in insurer bashing.
For my part, I am not aware of any moves by insurers for there to be a review of the pre action protocol regime.
Certainly, my own company has not canvassed for this and I have heard nothing on the grapevine suggesting such a review by other insurers. While there may be merit in simplifying various protocols, I entirely agree with Tom that if the protocols aren't broken they do not need fixing.
Likewise, I accept that there are issues with non compliance with the protocols and, maybe, Tom's suggestions of inclusion of protocols within the civil procedure rules with cost sanctions for non compliance has merit.
But this must work both ways. There are a number of solicitors who also do not observe the protocols, or requirements in respect of conditional fee arrangements, or indeed their own rules.
However, I cannot see how reform of the protocols will serve to fundamentally reduce costs, which Tom suggests is the insurers' motive for meddling.
While I agree that is unlikely that the consolidation of protocols will lead to cost benefit, the extent of legal costs is an issue. Costs proportionality has not been delivered. In my mind this issue harms everyone and inhibits access to justice.
The issue for me is what is the real barrier to cost proportionality? In my mind it is referral fees. There can be no doubt that legal costs are artificially high so as to accommodate referral fees.
Now, I would be the first to accept that insurers are major contributors to the referral fee issue.
Tom Jones's article implies that he would support legal system reform that incentivises compliance with rules, and a system that makes access to justice faster.
There are models in existence that achieve these aims and deliver cost proportionality. What inhibits utilisation of these models is the vested interests of all, and referral fees.
Ultimately, in the personal injury arena the objectives of insurers and claimant solicitors are not diametrically opposed.
I do not believe that anyone is merely seeking change for changes sake, but what is needed for the mutual benefit of claimant lawyer, claimant, defendant and defendant insurer is a sensible, mature debate about access to justice and the impact of referral fees on the whole process without vested interests getting in the way.
David Fisher, Liability claims technical manager, AXA Insurance
