The Association of Consumer Support Organisations (ACSO) welcomed the consultation extension to allow the Civil Justice Council (CJC) to gather information and perspectives on the outcome of Belsner -v- CAM Legal Services Limited [2022] EWCA Civ 1387 ('Belsner'). However, it is noted that no further guidance or focus has been provided to assist stakeholders to understand what it is about Belsner, and presumably other connected costs litigation, that is the focus of CJC concern.
Arguably the most important issue discussed in the case of Belsner is that of contentious and non-contentious business pursuant to Part III of the Solicitors Act 1974 ('the Act'), and so this was the focus of our submission.
Ultimately, ACSO believes that the Act requires a complete overhaul of the primary legislation in pursuit of both parity and clarity.
The overarching issue that is not resolved by Belsner is the imbalance in consumer protections between contentious and non-contentious business, and the inevitable confusion and, therefore, disputes this has and is causing. We have suggested that there are three ways parity can be achieved:
- Increase the protections of non-contentious business to the same level as those for contentious business in the Act; or
- Reduce the consumer protections afforded by contentious business in the Act to the same level as those for non-contentious business; or
- Adjust the protections in both regimes to meet somewhere in the middle.
ACSO is mindful that options 2 and 3 require primary legislation, as is our priority request, but is also mindful that there is likely to be a lack of government capacity and appetite for such reform. Option 1 could be achieved through powers delegated to a prescribed committee as provided for at Section 56 of the Act, though this committee is not currently established. However, ongoing issues with the provisions for contentious business (about which there is ongoing and undetermined litigation such as that in Edwards (& others) -v- Slater and Gordon UK Limited SC-2021-APP-000231) would be duplicated to the non-contentious business space should protections be copy-typed using the committees limited delegated powers.
It is of course open to the CJC to take no action and proceed with planned legal costs reforms (such as extending Fixed Recoverable Costs (FRC) regimes and making changes to the pre-action space) without any intervention into the provisions of the Act and ongoing solicitor own-client costs uncertainty. ACSO warns against this, and considers that proceeding without due regard to the outstanding issues with the Act could cause an access to justice crisis with uncertain, though increasingly important, consumer and representative funding agreements resulting in further resource-draining satellite costs litigation and unnecessary market dysfunction.