Ok, so lots of other commentators have passed their views. I think we all need to remind ourselves of the pertinent legal and political issues:
(1) The Lords / Supreme Court has never been very good on procedural issues; and
(2) If the uplift and ATE is irrecoverable, and parties have liberty against the government or receiving parties to recover historic payments, then it will open up a whole world of pain!
We also need to bear in mind that next year will be an election year and both the Attorney General and the Secretary of State for Justice have some very finely balanced decisions to make when writing to the Supreme Court regarding whether they are to consider the matter of incompatibility.
The decision in Coventry
I think Dominic Regan may be correct with his article giving his take on this one.
I would go further with my opinion that it’s disappointing to see “Law Lords” – a group of former barristers who are far removed from ground level (and were throughout their careers at the Bar) have decided to pass comment on costs in this case. I doubt they have ever been involved with funding arrangements with lay clients.
Furthermore, the time of their decision is almost laughable. It comes almost 18 months after success fees and ATE premiums fell to receiving parties. What they are concerning themselves with can be labelled as historic “runoff” cases.
Sadly those claimants who entered into CFAs/CCFAs and took out ATE funding are potentially now in a position to be penalised even though when they did so, the Access to Justice Act, was in their favour.
I predict there will be a “fudging it” decision that causes some form of compromise.
If a bean counter in the government realises the potential exposure to the government of paying parties seeking to recover the success fee uplifts and ATE premiums then it could bring on a heart attack to the Tories.
Insurance companies would lead the way. All of those RTAs, clinical negligence, subrogated claims, credit hires, etc cases will come back to haunt the government.
As such, maybe the Supreme Court may decide it is not incompatible…
Keep your eyes peeled.
Over and out.