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Restructuring & Insolvency analysis: How would insolvency litigation fare if the Jackson exemptions were removed? A recent report from R3 discusses the likely effect should the current exemption applying to insolvency be lifted after April 2015.
R3 Report on Jackson exemption
R3 with the support of ACCA, ICAEW, ICAS, IPA, JLT Speciality Ltd, Moore Stephens LLP and Moon Beever commissioned an independent academic report into the likely effect of the Jackson reforms on insolvency litigation should this exemption expire in April next year. The report, carried out by Professor Peter Walton from the University of Wolverhampton (published April 2014) found a number of consequences for creditors should insolvency litigation not receive a permanent exemption from the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012).
The Jackson reforms for general civil litigation were brought about to tackle the escalating problem of legal costs disproportionate to the value of legal claims. In 2012 insolvency litigation was granted an temporary exemption from the Jackson reforms in LASPO 2012--the exemption is due to expire in April 2015.
Insolvency litigation is brought by independent professionals in the public interest and ultimately helps protect the public purse, already achieving the original aims of Jackson's reforms. Under the current regime the defendant pays the costs if they have lose an insolvency litigation case--under the new regime, the costs of the conditional fee arrangements and after-the-event insurance will not be recoverable from the defendant, it will come from the insolvent estate.
This will have a serious impact on the insolvency litigation regime in England and Wales. R3, the trade body for the insolvency profession, has been arguing that insolvency litigation differs from standard civil litigation and that it should be granted a permanent exemption from LASPO.
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First published on LexisPSL Restructuring and Insolvency on 12 September 2014
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