The Royal Court Rules Review Group, which is working alongside the States Access to Justice Review, has called for changes to the policy that governs how defendants’ costs are paid when a plaintiff or claimant loses a case.
As things stand when a claim is unsuccessful it is up to the plaintiff – the person pursuing the claim – to pay costs for the other side, but the group wants Jersey to follow a recent change in England and make defendants’ costs payable only when the court finds that a plaintiff has acted unreasonably.
- Islanders are now being invited to submit their views on the groups final consultation paper, which is available through gov.je.
- It can also be requested from Mrs Jane Rueb, Bailiffs Chambers, Royal Court House, St Helier, JE1 1BA, or by emailing j.rueb@gov.je.
- Responses can be sent in writing to the above address or email address.
However, one lawyer, a past president of the Law Society of Jersey and former member of the Royal Court Rules Review Group, has warned that such a change could lead to increasing insurance costs for Islanders, as firms may decide to settle claims that could be defended if they believe that this would be a cheaper course of action.
Advocate Tim Hanson said: ‘I do not think this will encourage a wave of unmeritorious claims, as frequently such claims will be legally aided anyway and require some merit to get off the ground to start with.
‘But it may well mean that even claims that are quite doubtful of success are settled by insurance companies who decide that settlement is cheaper than the legal fees that they are likely not to recover even if they win.
‘In turn, insurance premiums may go up.
‘An alternative might have been to protect such plaintiffs from adverse costs by assessing costs by reference to their means and what they can afford to pay.’
Mr Hanson said he congratulated the group for undertaking a ‘great deal of work’, adding that it had been hampered by the absence of statistical information in certain areas – such as the number of Islanders who do not proceed with claims for fear of exposure to paying costs for the other side in the event of a loss.
In addition to reforming the court’s cost policy, the review group has also suggested that the Petty Debts Court jurisdiction is increased so that it can handle claims for up to £30,000.
‘Its authority to act is currently limited to sums of up to £10,000.
According to their final consultation paper, which is now available to view, the Royal Court Rules Review Group said that the current legal costs policy was potentially deterring plaintiffs who had justifiable claims.
If their suggestions are implemented, the changes would apply to claims for personal injury, breaches of health and safety laws, medical negligence, negligent advice in relation to the sale or purchase of the family home and negligent advice in relation to wills, with actions in respect of a will being limited to claims below £250,000.
Their report said: ‘In practical terms the group is concerned that potential plaintiffs with justifiable claims whose only real asset of value is the family home may be deterred because of the risk of losing the family home if they lose their claim.’
It explained that those who had access to legal aid, available to those with an income of under £40,000 per year or assets of less than £100,000, faced ‘no real consequences to losing an arguable claim if the plaintiff has no assets’.
The Royal Court Review Group comprises the Bailiff William Bailhache, Citizens Advice Bureau chief executive Malcolm Ferey, Advocate Steven Pallot, Advocate Anthony Robinson, Advocate Jonathan Speck and Advocate Matthew Thompson, the Master of the Royal Court.
