The judicial fiddlers are at it again

Discussing Thompsons' response to the current consultation from the Department for Constitutional Affairs (DCA) and the Civil Justice Council (CJC) on consolidating protocols, I was overcome with weariness at yet another proposal that fiddles with the way personal injury litigation is conducted.

I'd guess there's been around 20 consul-tations to change personal injury legal processes in the past three years. The volume of consultations has become such that Thompsons has put together a response team to deal with them.

There has been employers' liability compulsory insurance, small claims, civil procedure rules part 36, pre-action admissions, fee-scales, fixed costs, success fees, focusing judicial resources, simplifying CFAs, the in-demnity principle, reforming mesothelioma claims procedure - I could go on.

And the publication of the DCA's consultation on reforming the professional indemnity claims process is imminent.

The Woolf reforms barely had time to bed down before the consultations on further reforms started. Of course, all new systems need some fine tuning. But what we are seeing is constant change for the sake of change.

It's not exactly joined-up government and, are things really that much better now for either side?

The current DCA/CJC consultation on the proposal that the separate pre-action protocols for the very diverse areas of litigation - from personal injury to defamation, clinical negligence to housing disrepair, disease and illness to rent arrears - be merged into one with a host of appendices is one of the most illogical yet.

The protocols aren't broke. They do not need fixing. But, there is a real issue about enforcement and consistency.

As a national law firm we frequently see different courts viewing the protocols in different ways. In our experience they are too often honoured in the breach and not taken seriously by defendants. But that does not mean they need scrapping.

The answer is that the protocols should be incorporated into the civil procedure rules. By doing so we would see an end to the current vast differences of approach being taken by the judiciary in determining whether a protocol has been breached and what the sanctions to be applied should be.

Rather than review the lot, give the protocols real teeth in the form of mandatory costs sanctions.

The motive for the proposal to consolidate is said to be a desire to reduce and simplify the protocols. But there is also a perceived need to reduce costs (though we cannot see any cost benefit to either claimant or defendant in consolidating the individual protocols).

Once again, it would appear that an insurance industry created myth, that legal costs in personal injury claims are creating a "crisis" has the attention of civil servants and ministers.

The drive is for a quicker and cheaper civil justice system.

The question though is cheaper for whom? The insurance industry certainly. Sadly, though, I assume the savings will not be quantified and won't be used to reduce premiums but rather to bolster profits (with the industry hiding behind the old "its the underwriters" excuse).

But isn't the real issue why, in some cases, the civil justice system takes so long - and therefore the costs mount up?

The answer lies in the hands of the judiciary, in consistent and firm enforcement of the rules, and also with the defendants, by not denying and delaying genuine claims.

We don't oppose legal system reforms that incentivise compliance with rules and admissions of liability and bring consistency. And we don't oppose measures that increase access to justice and make claims faster.

But we do object to defendant-driven meddling that leads to confusion and uncertainty. IT

' Tom Jones is director of policy and public affairs at Thompsons Solicitors