The Times They Are A-Changin’ – July 2014

The Times They Are A-ChanginKieran Magee

MASS Yorkshire/Lancashire Region Coordinator and Partner & Head of Compliance at True Solicitors LLP

I really wanted to avoid starting this piece with a moan about the pace of regulatory change in the PI sector. I really did. Since LASPO was first published in the autumn of 2011, heralding the Government’s offensive upon the supposed ‘compensation culture’, there have probably been hundreds of articles or comments bemoaning the waves of change that we have all had to contend with in recent years.

But cliché or not, it is at the root of what I want to say and there is no avoiding it. The MoJ is seeking further change, perhaps not as dramatic or as well publicised as LASPO or the whiplash reforms, but important to those of us concerned with claimant rights nonetheless.

On 17 June the Government quietly slipped a new clause into its Criminal Justice & Courts Bill. As the long title of the Bill suggests, this legislation is primarily concerned with dangerous offenders, new offences and sentences, young offenders, the Courts and tribunals and possibly most controversially changes to the judicial review process. The clause in question, however, was civil in nature, giving courts the power to dismiss a whole claim if the court is satisfied “on the balance of probabilities” that the claimant has been “fundamentally dishonest”. I am told that this is not unusual and that a Bill like this is often referred to as a ‘Christmas –tree Bill’ because a random selection of baubles can be hung onto its structure.

I am clearly not a Westminster insider familiar with the complex machinations of the corridors of power. But it does seem fundamentally wrong to me that a new provision, that could have significant impacts, is announced as a policy objective some 10 days earlier, suddenly pops up and with no further discussion or debate is enacted in a piece of legislation within 24 hours, as part of a Bill that was first published back in February. Why is it that Government sometimes only appears to be ruthlessly efficient and effective when you would rather it wasn’t?

Then a month later, another series of amendments are tabled to introduce a ban on inducements to attract claims. I accept that the Government has previously announced its intention to move on both matters. For the record, I am broadly in favour of a ban on inducements providing that it is targeted and implemented sensibly, but I have some serious concerns with how the ‘fundamentally dishonest’ provisions may be defined in the future.

My point is that such important changes should be made in a measured and thoughtful manner after careful consideration of the consequences. The way in which both measures are to be introduced is important and deserve debate and expert analysis.

I retain a glimmer of hope that my confidence in the legislative process will be renewed. At about the time this piece will be published, there is an opportunity for members of the House of Lords to debate in detail both of these measures. I hope that the debate will be well informed and that the Minister will listen to reasoned argument. The detailed regulations to implement both measures are no doubt still to be drafted and these may yet provide the clarity and assurances that solicitors want for protecting the legitimate rights of their clients. But then I am an optimist by nature.

So the frantic pace of change in the Government’s PI reform agenda continues, for good or bad. There was a fair amount of substitution in the ministerial ranks recently as around 40 (out of 120 or so) paid and unpaid ministerial and other jobs were reshuffled ahead of next year’s General Election. The pace of change did not however extend to the MoJ with only one role, held jointly with the Home Office, changing. Some might consider this a missed opportunity for a positive change.

Just as Bob Dylan sang ‘the times they are a-changin’.