CROC QOCS

Thursday 24th November, 2011

We understand that the Government’s current plans for the rules regarding the operation and implementation of the Jackson reforms are being formulated by the Civil justice Council and the Ministry of Justice. The plan is for these rules to be published next Spring 2012 when the LASPO Bill should have achieved Royal Assent with implementation of the Bill and the Rules to occur on 1.10.2012.

The CJC and MOJ are struggling with the implementation of QOCS because there appears to be a realisation that QOCS are much more likely to encourage speculative litigation than CFAs and ATE ever did. The point being that if a litigant is penniless, how do you stop them and their lawyer pursuing a worthless claim? One proposed solution is for the QOC to be further qualified by the operation of an “excess” so that if the claimant loses, they would be liable for the first £1000 of the defendant’s costs. Not much deterrent if the claimant has no money at all, you may think.

Further issues that are exercising the Rules committees are whether such “excesses” could be deducted from any damages awarded.

Who will qualify for a QOC? At the moment the thinking appears to be anybody who is not a higher rate tax payer. I suspect that the vast majority of higher rate tax payers would not regard themselves within Lord Jackson’s definition of being “conspicuously wealthy”. Quite what happens if the claimant’s tax status were to change during the litigation is the type of
question that doubtless keeps the rule committee members awake at night.

Who will administer the test for QOCS? Well we guess that will undoubtedly be another burden for the legal profession.

There seems to be an increasing awareness that a further unintended consequence of the Rule changes and of the LASPO Bill will be that the Litigant in Person could grow from being an occasional pest to a plague, completely clogging up the Courts. The CJC and the MOJ have clearly got their work cut out trying to resolve that issue.

Do not expect these rule changes to make the White Book any shorter or any less arcane!

As regards the progress of the LASPO Bill, it is due to be debated in committee in the House of Lords during December 2011, where it is hoped that the much more informed debate that will take place in that House, will make this Government think twice about the effect of the wholesale withdrawal of Legal Aid and recoverability (of success fees and ATE premiums) on access to justice.

The writer never f ails to be astonished at the complete failure of the Lib Dems, in particular, given their previously espoused views on access to justice, to appreciate the consequences of their lack of opposition to the Bill.

 

Michael Lent

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