Legal aid bill

Thursday, 07 July 2011 00:00

Justice Secretary Ken Clarke introduced the Legal Aid, Sentencing and Punishment of Offenders Bill to Parliament last week. The Government is rushing the bill through Parliament without modification ignoring over 5,000 responses to its proposals published last year 80% of which opposed the reforms. The legislation will cut £350 million from the legal aid budget by abolishing legal aid for virtually all civil claims, including; family law, education law, housing, personal injury, clinical negligence, employment, immigration and social welfare law.

Justice minister Jonathan Djanogly said: "These reforms will ensure that we have a legal aid system which is targeted at those who need it most, in the most serious cases, as well as providing value for money to the taxpayer."

We fear however that the reforms will make access to justice only available to the wealthy.

Defending their proposals the Government argue that there is a viable alternative method of funding for claims such as Clinical Negligence under a CFA or "No win no fee" agreement. However at the same time as abolishing legal aid the Government will impose new stringent controls on costs. At present the losing party usually pays the winning party's legal costs. Where there is a "no win no fee" agreement in place this includes the additional "success fee" the lawyer charges for taking the risk they will not be paid and the cost of insurance to cover the other side's costs. The changes made under the new Bill will mean that a winning Claimant, the victim, will have to pay these additional costs out of their compensation. The costs will be capped and the legislation allows for a small increase in damages to offset this, but undoubtedly this will lead to victims being undercompensated and lawyers being reluctant to take on difficult cases.

The Government believes these changes are needed to combat this country's "compensation culture" with weak or exaggerated claims being brought by Claimants on a no win no fee agreement as there is no risk to them. They say that with the threat of excessive costs Defendants settle a defendable case to get out before the costs start running up.

We however do not accept that is the case.

• Experienced lawyers will not pursue a weak claim under a no win no fee agreement.

• Where mistakes have been made the Claimant is a victim and should be compensated for their suffering by the wrongdoer. In most cases it is the Defendant's insurer who takes control of the litigation and pays the damages.

• In the higher value claims commonly a Defendant will refuse to accept they are culpable in the early stages and force the Claimant to issue proceedings at Court only to capitulate once significant costs have been incurred by the Claimant.

• In the lower value more common personal injury claims such as an RTA, success fees are already capped and costs are fixed with streamlined court procedures encouraging early settlement.

We have real concerns about introducing these two reforms in tandem on those who have suffered injuries as a result of clinical negligence. Andrew Lansley, Secretary of State for Health, spoke of the need to halt "a rising tide of litigation" in the NHS. There was an increase in damages paid for clinical negligence by 1/3rd last year. But instead of looking at the cause the Government focuses on the effect. ¼ of all clinical negligence claims brought last year were funded by legal aid with a 1/3 rd of these being brought on behalf of child. If many of these cases are not brought in the future, that is a significant saving. Not only will the Government save on the Legal Aid Budget they will avoid the damages payout as well.

Is there an alternative for the victims of medical accidents? The Parliamentary and Health Service Ombudsman has the power to investigate complaints against NHS bodies and if a complaint is upheld then the Ombudsman can make recommendations including an apology and compensation for losses. Last year over 100,000 complaints were made about NHS services. Of these only 15,579 were referred to the ombudsman and of these only 346 were accepted and investigated by the Ombudsman.

The reforms under the Legal Aid, Sentencing and Punishment of Offenders Bill will undoubtedly achieve the short term aim of saving £350 million from the Legal Aid Budget as fewer claims will be brought. However medical mistakes will continue to be made, errors will go unchecked and with less litigation they may even rise. We have seen changes in clinical practice and procedures in hospitals following investigations undertaken with litigation which uncover system failures and malpractice. Such litigation plays an important role in ensuring high standards in the NHS. Whilst mistakes continue to be made, without access to justice through the civil courts the burden of caring for those injured will fall to the NHS and Local Authorities rather than being funded through compensation. It is a false economy.

The Government say that their aim is "to restore a much needed sense of proportion and fairness to the current regime – not by denying access to justice, but by returning fair balance to the system." But the scales have been tipped in favour of the Defendant to the detriment of the victim. If you remove legal aid and stop a Claimant from recovering all their costs, fewer claims will be brought. That is the Government's true motive in these measures.