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Sharing the burden

after the event insurance, costs, jackson report, James Arrowsmith, legal costs, litigation

27 August 2010

The debate about the future of litigation costs rages on. The Adam Smith Institute is the latest body to publish a report proposing reform to the CFA regime, and the abolition of legal aid for most claims.

The report’s author, Anthony Barton, proposes a cap on recoverable success fees and ATE premiums accompanied by a modest uplift in general damages to address the concern that claimants will be left less well off. The great strength of his report is in placing legal costs issues in the context of the current economic situation.

Barton is critical of Lord Justice Jackson’s proposals in relation to one way costs shifting and expresses concern in relation to the potential for unintended consequences, including spurious claims and fraud.

Jacksons’ recommendations should not be dismissed lightly and are likely to be at the heart of the Government’s proposed consultation in Autumn. Whether or not his conclusions prove correct, Barton’s report is also deserving of further consideration in the months ahead.