Potential Effect of down’ the existing legislation ‘reading In the that the Court was to conclude that the pre Jackson regime was not prima facie compatible with Article 6, the first issue is whether the flaw rests with the primary legislation in that it is fundamentally incompatible, or whether the flaw rests either with the secondary legislation and/or the court’s approach to implementation of the primary and/or secondary legislation in such a way that that secondary legislation may be read down, or this court may give revised guidance as to the application of the legislation such as to achieve a compatible approach. In the that the Court was to conclude that the latter course was appropriate, the presumed intention would be to arrive at a regime which either removed the ability to recover additional liabilities between the parties completely, in a fashion akin to the Jackson reforms, but without those reforms’ transitional provisions or balancing measures, or which placed greater restrictions than had hitherto been the case on the ability on assessment to recover some or all of such liabilities. Whilst the ACL would, of course, seek to assist the Court with how best such objectives could be achieved, the ACL’s primary concern is as to the damaging effect that such an outcome could have. In particular, in relation to the possibility of a reading down of the secondary legislation and/or the provision of revised guidance such that the recovery of additional liabilities was restricted, the ACL highlights the following practical concerns; The Jackson reforms are a carefully constructed, interlinking package of measures. The removal of the recoverability of additional liabilities was rightly seen as something that could not be achieved in isolation without the risk of serious unfairness and injustice. Compensating mechanisms included the enhancement of the level of general damages (Simmons v Castle [2012] EWCA Civ 1039, [2013] 1 WLR 1239), the introduction of QOCS and the introduction of a capping system for the ability of solicitors to charge success fees to their clients,
Potential Effect of ‘reading down’ the existing legislation In the that the Court was to conclude that the pre Jackson regime was not prima facie compatible with Article 6, the first issue is whether the flaw rests with the primary legislation in that it is fundamentally incompatible, or whether the flaw rests either with the secondary legislation and/or the court’s approach to implementation of the primary and/or secondary legislation in such a way that that secondary legislation may be read down, or this court may give revised guidance as to the application of the legislation such as to achieve a compatible approach. In the that the Court was to conclude that the latter course was appropriate, the presumed intention would be to arrive at a regime which either removed the ability to recover additional liabilities between the parties completely, in a fashion akin to the Jackson reforms, but without those reforms’ transitional provisions or balancing measures, or which placed greater restrictions than had hitherto been the case on the ability on assessment to recover some or all of such liabilities. Whilst the ACL would, of course, seek to assist the Court with how best such objectives could be achieved, the ACL’s primary concern is as to the damaging effect that such an outcome could have. In particular, in relation to the possibility of a reading down of the secondary legislation and/or the provision of revised guidance such that the recovery of additional liabilities was restricted, the ACL highlights the following practical concerns; The Jackson reforms are a carefully constructed, interlinking package of measures. The removal of the recoverability of additional liabilities was rightly seen as something that could not be achieved in isolation without the risk of serious unfairness and injustice. Compensating mechanisms included the enhancement of the level of general damages (Simmons v Castle [2012] EWCA Civ 1039, [2013] 1 WLR 1239), the introduction of QOCS and the introduction of a capping system for the ability of solicitors to charge success fees to their clients,
Coventry-v-Lawrence-ACL-written-submissions.docx