Litigation Costs and Before‐the‐Event Insurance: The Key to Access to Justice?
| Published date | 01 March 2011 |
| Date | 01 March 2011 |
| Author | Richard Lewis |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00846.x |
LEGISLATION
Litigation Costs and Before-the-Event Insurance:
The Key to Access to Justice?
Richard Lewis
n
The costof civil litigation is a keyfactor in determining the extentof access tojustice.Followingcuts
in legalaid attentionhas focusedupon ¢ndingalternative methodsof assistinglitigantswithout pro-
ducing costs which are out o f proportion to the damages obtained. The recent report by Lord Justice
Jackson attempts to deal with concerns about incre asing and disproportionate costs said to ar ise in part
because of the encouragement of conditional fee agreements. This article considers the proposals
made in the report, and argues that too little attention has beenpaid to before-the-event insurance
as a meansof securing access to justicefor the great majority of claimants whosu¡er personal injury.
INTRODUCTION
This article looks at particularrecommendations made by LordJustice Jackson in
his reviewof the costs of civillitigation.
1
In a twovolumereport running to over a
thousand pages he proposesto make radicalchanges. If the complex, inter-related
reforms are all introduced, they would be even more signi¢cant than those pro-
cedural changes set in train by LordWoolf ¢fteen years ago.
2
The proposals have
been much discussed by the legal profession but, as yet, they have largely escaped
the attention of academic law journals.
3
They received support in a recent report
on compensation culture,
4
and the Government have announced that they are to
form the foundation for its reform ofcivil litigation.The Jackson proposals are to
be taken forward as a matter of priority.
5
Here the focus is upon one particular issue: the potential use of before-the-
eventi nsurance (BTE).This is insurance against future legal coststhat was in place
before the event which gave rise to the claim, such as the accident which caused
n
Professor of Law, Cardi¡ LawSchool, Cardi¡ University.
1R. JacksonLJ, Reviewof CivilLitigationCosts:Final Report(London: Judiciary of Englandand Wales,
2010), and R. JacksonLJ, CivilLitigation CostsReview ^ PreliminaryReport by LordJusticeJackson(Lon-
don: Judiciary of England and Wales, 2009). The review was commissioned by the Master of the
Rolls,Sir Anthony Clarke, in November 2008 and speedily completed in a year.
2LordWoolf, Accessto Justice: Final Reportto the Lord Chancelloron the CivilJustice System in England and
Wa l e s (London: HMSO,1996).
3But see the general reviewbyA. S. Zuckerman,‘TheJackson Final Report on Costs ^ Plastering the
Cracks to Shore up a Dysfunctional System’(2010) 29(3) Civil Justice Q 263^283, and contrast M.
Lyons,‘‘Jackson ^ An Initial Response’’ [2010] J Personal Injury Law74^92.
4LordYoung,Common SenseCommon Safety(2010).This is a report to the Prime Minister following a
Whitehall^wide review of the operationof health and safety laws and the growth of the compen-
sation culture, and at p 22 it recommends that Jackson’s proposals be adopted as soon as possible.
http://www.number10.gov.uk/wp-content/uploads/402906_CommonSense_acc.pdf
5Ministry of Justice, Proposalsfor Reform of CivilLitigationFunding and Costsin England andWales (Con-
sultation PaperCP13/10)(Cm 7947) (London: Ministry of Justice, 2010) section 1.1.
r2011The Author.The Modern LawReview r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(2) 272^286
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