Dear Lord Chancellor
RESPONSE TO PROPOSALS FOR
REFORM OF LEGAL AID IN ENGLAND AND WALES –
CONSULTATION PAPER CP12/10
NOVEMBER 2010
I write on behalf of Field Fisher Waterhouse who practice in the
fields of Personal Injury and Clinical Negligence Law, and who are
therefore stakeholders in the proposed reform of Legal Aid in
England and Wales both as lawyers and as representatives of our
clients who are often very seriously injured through no fault of
their own and require access to justice.
We are Legal Aid practitioners and the firm holds franchises in
the fields of Personal Injury, Clinical Negligence and Multi party
actions.
It is not our intention to respond to areas outside our special
expertise. Nevertheless, we consider that Legal Aid is of vital
importance to the right of the citizen to gain access to justice
not only in cases where life or liberty is at stake, or where there
is a risk of physical harm or immediate loss of a citizen’s home.
Legal Aid in a civilised, democratic society should enable the
ordinary citizen who does not have the means to the right to access
to justice particularly in cases where they have been grievously
injured through no fault of their own.
Indeed, we are supported in our view by Lord Justice Jackson
whose paper seminal report “Review of Civil Litigation Costs Final
Report” indicates vehemently as follows:-
“Legal Aid is still
available for some key areas of litigation, in particular clinical
negligence, housing cases and judicial review. It is vital that
Legal Aid remains in these cases. However, the continued tightening
of financial eligibility criteria, serves to exclude people who
could not possibly afford to litigate, inhibits access to justice
in those key areas. In my view any further tightening of the
financial eligibility criteria would be
unacceptable.”
And:-
“I do not make any
recommendations in this chapter for the expansion or restoration of
Legal Aid. I do however, stress the vital necessity of making no
further cut backs in Legal Aid availability or eligibility. The
Legal Aid system plays a crucial role in promoting access to
justice at a proportionate costs in key areas.”
Whilst we do not accept some of Lord Justice Jackson’s proposals
for reform (and we have separately responded to the Ministry of
Justice Consultation Paper CP13/10) if, as seems likely, the
government accepts thrust of the Jackson review then the current
Legal Aid system must at the very least be maintained so as to
ensure access to justice for the poor and vulnerable, and that the
government complies with its duties and obligations under the ECHR.
If “the government strongly believes that access to justice is
a hallmark of a civil society” then it should be very careful
to avoid adopting proposals to dismantle the Legal Aid system which
it is universally agreed promotes access to justice.
Scope
Question 1
We agree that it is important to
retain Legal Aid for the proceedings listed in paragraphs 4.137
–
4.144 for the general reasons as set
out above. We are not qualified to give specific reasons.
Question 2
We are not qualified to answer this
question.
Question 3
1. We are not qualified to comment on
paragraphs 4.148 – 4.162.
2. Clinical
Negligence
The government’s position is summarised at paragraph 4.166 as
follows:-
“Therefore, although in our view
the issues likely to arise in clinical negligence cases will
sometimes be very important, we consider that Legal Aid funding is
not justified for these cases because there is a viable alternative
source of funding enabling the targeting of limited resources to
other priority areas. We therefore propose to exclude from civil
Legal Aid all clinical negligence cases, because we consider that
CFAs are likely to be more readily available in these cases than in
other claims (for example, those brought against
public authorities).”
We have been practising in the field of clinical negligence for
decades and have represented many clients whose lives have been
destroyed by the mismanagement of their medical treatment. Many
have suffered grievous harm with devastating lifelong injuries. The
vast majority of these cases have been supported by Legal Aid and
our clients are grateful for this support without which (their
claims and therefore access to justice) would not have been
possible to pursue.
The government is being cynical to suggest that there is a
viable alternative source of funding.
The present system with recoverable
success fees and after the event insurance premiums does allow a
significant number of clinical negligence cases to be pursued.
Contrary to the Jackson view these cases are risky and depend on a
thorough “upfront” investigation involving both legal and expert
advice. The rewards under the present system do not allow
solicitors to proceed to investigate some of these complex risky
cases which require substantial funds to pay for disbursements
upfront (medical records, expert medical fees both on breach of
duty and causation) running into many thousands of pounds.
Furthermore, the proposed reforms by
Lord Justice Jackson will inevitably reduce the “quantum” of
success fees (which in any event will be recoverable from the
client) because they will be limited to 25% of the past losses and
general damages. This means that solicitors will not be able to
afford to investigate the more risky cases and many serious and
grievously injured clients will be denied access to justice.
In short, the present system involving
a mixed funding arrangement (Legal Aid / CFA) allows investigation
of a good proportion of clinical negligence cases. A reformed
system abolishing Legal Aid and reducing the recoverability of
success fees and after the event insurance premiums will cause
denial of access to justice so as to question whether we maintain a
civilised society. These cases are serious and require public
support for legal advice and representation.
We strongly oppose the government’s
proposal to exclude Legal Aid in clinical negligence cases.
3. We note in paragraph 4.167 that the
proposals indicate:-
“The government recognises that
there are likely to be cases, such as obstetric cases, with high
disbursement costs, which are currently funded by Legal Aid but for
which clients may find it hard to secure funding under a
CFA”
These high disbursement cases are not
limited to obstetric cases. Many cases outside the obstetric field
require high disbursements to investigate. Obvious examples
are:-
(a) Anaesthetic care involving
significant injury or death.
(b) Paediatric cases involving serious
injury or death.
(c) Cancer cases involving serious
injury or death.
(d) Accident and Emergency cases
involving serious injury or death.
In fact nearly every field of medicine
could be listed. The issue is often not only breach of duty (which
sometimes can be relatively straight forward) but also causation
which can and usually does require expert advice from a number of
different specialisms.
An illustrative example is the case of
Romy Smith v East & North Hertfordshire NHS Trust, (judgement
report on quantum attached) where the injuries arose out of an over
infusion of glucose 5 days after Romy was born. Romy suffered
catastrophic injuries described in the judgement of Mr Justice
Penry-Davey. This was not an obstetric case, breach of duty being
by a paediatric nurse in intensive care. We submit therefore that
“high disbursement costs” are not limited to obstetric cases and
that (as above) we consider that most clinical negligence cases
will be difficult to pursue under a CFA (even in the present
arrangements).
If the government does introduce a
more restrictive definition of “included” clinical negligence cases
we suggest that this is “expert based”. In any case which requires
more than three experts on liability and the Claimant satisfies the
other eligibility criteria (financial / prospects of success /
proportionality) then public funding should be granted.
We agree that low value clinical
negligence claims should be dealt with under the “Redress scheme”
as devised by AvMA.
4. We are not qualified to comment on
paragraphs 4.170 – 4.245.
Question 4
We do not agree with the government’s
proposal to introduce a new scheme for funding individual cases
excluded from the proposed scope so that Legal Aid can be provided
to comply with domestic and international legal obligations.
We repeat our answer to question 3
above.
Moreover, as personal injury lawyers
(as well as clinical negligence lawyers) we have experience of the
present scheme which excludes personal injury claims but provides
for the possibility of funding such claims with similar criteria as
set out in paragraphs 4.252 – 4.262 (significant wider public
interest, overwhelming importance to client and representation
where it would be practically impossible for the client to bring or
defend proceedings).
Unfortunately, the practical reality
of such criteria means that there is a wide discretion for the LSC
(who presently administer the scheme) not to allow Legal Aid in
these cases. It has been our experience that virtually no personal
injury cases (presently excluded from the scheme) are allowed
public funding. We fear that were, for example, clinical negligence
cases, put into the same category this would be the death knell for
Legal Aid in clinical negligence claims.
Question 5
We do not agree with the government’s
proposal to amend the merits criteria so that, for example,
clinical negligence cases, would not be permitted public funding if
a CFA is potentially available. In effect this would allow the LSC
to refuse clinical negligence in all clinical negligence cases.
We agree that the present funding code
is sensible. It disallows public funding if a client has
availability of before the event insurance or legal expenses cover
through its Trade Union. This should be retained.
Question 6
Litigants in person; we have limited
experience of dealing with litigants in person because we act
usually for Claimants. However, it is obvious that if public
funding is reduced in scope and lawyers by necessity “cherry pick”
cases then the number of litigants in person will substantially
increase. This will have a huge impact on the necessity for
resources to be diverted to court staff and judges because of the
time required to deal with such claims (increased resources will
also be required from the Defendant organisations, e.g. insurers,
Defendant’s solicitors, the MDU, the MPS and the NHSLA). The cuts
to voluntary and charitable organisations presently envisaged by
the government (CAB, AvMA, patient liaison organisations) means
that assistance to these individuals will become even more scarce
than it is at present.
The Community Legal Advice
Telephone Helpline
Questions 7 – 11 inclusive
A community legal advice helpline for
civil cases is a reasonable idea in principle. However, this would
need to be funded appropriately and be independent of the Legal Aid
authority. Too often in the present system the LSC sees its role to
refuse public funding rather than to help an injured or distressed
client.
Moreover, we are sceptical that proper
advice can be given over the telephone save to introduce the
potential client to a qualified lawyer (where this is needed). It
is wholly unsatisfactory to propose that “cases can be dealt
with through a community legal advice helpline”. Most cases we
deal with are extremely complex and require face to face meetings
and thorough investigations from a legal and medical
perspective.
We would also caution the proposal to
expand this service to include the option for pay for advice for
clients who are ineligible for Legal Aid. This will lead to abuse
and a fundamental lack of choice in the provision of legal
services.
Financial
Eligibility
Question 12
We consider that clients who are in
receipt of passport benefits should be subject to the same capital
eligibility as other applicants. It is the role of the Department
of Work and Pension to decide eligibility to benefits. If a client
qualifies for a passport benefit then that should be the end of the
matter (as far as financial eligibility is concerned).
Question 13
We do not agree that clients with
£1,000 or more disposable capital should be asked to pay a further
contribution of £100. These individuals are already vulnerable and
poor. A requirement for such commitment would mean that many
clients would be denied access to justice.
Question 14
The present system works well. If the
equity and pensioner capital disregards were removed many people
(particularly in the South East of England) would be denied Legal
Aid and denied access to justice. Such a “reform” would be seen by
the public and the legal profession as a cynical move to remove a
significant number of citizens from the right to obtain Legal Aid.
We repeat (because we agree) the views of Lord Justice Jackson as
follows:-
“Legal Aid is still
available for some key areas of litigation, in particular clinical
negligence, housing cases and judicial review. It is vital that
Legal Aid remains in these cases. However, the continued tightening
of financial eligibility criteria, serves to exclude people who
could not possibly afford to litigate, inhibits access to justice
in those key areas. In my view any further tightening of the
financial eligibility criteria would be
unacceptable.”
Question 15
The government’s proposal to introduce
a gross capital limit of £200,000 effectively from equity in an
individual’s home would be unfair, particularly to citizens who
live in the South East of the UK. In a recent case a client who
suffered a very significant back injury as a result of alleged
clinical negligence is unlikely to receive Legal Aid on financial
grounds in the present system. This is because she has a home
without a mortgage but no other financial resources. If the
government’s proposal were introduced most private home owners
would be excluded from public funding and therefore denied access
to justice.
Questions 17 and 18
We do not consider that a property
eligibility waiver would work in practice. Too often the intention
of the LSC (which has to work to a budget) is to endeavour to
refuse public funding. In practice the LSC would never waive the
capital limits unless forced to by other means (e.g. judicial
review). Already there are huge costs, complexity and time wasted
in trying to obtain Legal Aid. The property eligibility waiver
would introduce a level of complexity and discretion which would
make matters much worse.
Questions 19 - 21
We are not qualified to answer.
Question 22
The proposal to increase income based
contributions up to a maximum of 30% disposable income is obviously
intended simply to cut the Legal Aid budget and remove a large
swathe of the population from accepting an offer of public funding.
To require an individual to pay 30% of his disposable income to
pursue a clinical negligence case (for example) beggars belief in a
civilised society. We agree with the principle that clients should
have some interest in the case but 30% is far too high and would
be, in the words of Lord Justice Jackson, “unacceptable”.
Question 23
We do not agree with either of the
proposed models put forward by the government for the reasons set
out at question 22 above.
Criminal
Remuneration
We do not undertake criminal work and cannot comment on
questions 24 – 31.
Civil
Remuneration
Question 32
The rates for lawyers in civil cases
are already largely uneconomic. No practice in the City of London
could survive on fees generated from Legal Aid cases. Personal
injury and clinical negligence litigation is only possible if we
win cases and recover our standard costs from the Defendants. Legal
Aid is necessary to cover disbursements and as a safety net in
cases which are lost.
However, we accept the inevitable
budget restraints and we would agree to accept a 10% reduction in
fees to maintain and improve the present system.
Question 33
We would agree to the capping of
enhancements at 100% for cases in the High Court, Court of Appeal
and Supreme Court and 50% for all other courts.
Question 34
We refer to question 32 above. We
assume that most barrister’s would accept a 10% reduction to “save”
Legal Aid.
Question 35
We agree that risk rates should become
payable for both solicitors and counsel as soon as the
investigative stage is completed, or once the total costs reach
£25,000, whichever is the sooner.
Questions 37 – 38
We are not qualified to respond as we
do not undertake family certified work.
Expert
Remuneration
Question 39
Introduction
We understand that the government wishes to obtain best value
for payment of expert’s fees in medical negligence litigation. We
would note the VHCCs in clinical negligence cases that the success
rate has risen from 80% to 91%. This means that in clinical
negligence cases where the costs are more than £25,000 91% of the
cases are successful. The reason for this is that clinical
negligence solicitors who are franchised by the LSC are highly
experienced and understand how to conduct clinical negligence cases
effectively. Choosing the appropriate expert in a case is
fundamental to this success. The government’s scheme to reduce
costs will drive the best experts away. This will result in a lower
success rate in clinical negligence cases and increase the overall
clinical negligence costs for the government in respect of Legal
Aid. It is therefore not in the government’s interest to press on
this reform.
Moreover, as we understand, the two advisory groups have not yet
reported and we would be loathe for the government to introduce
proposals without awaiting the valuable information likely to be
derived from these groups.
The fact that expert’s fees are
largely recovered from the Defendants (in 91% of cases) and in
those cases the vast majority of expert’s fees are deemed to be
reasonable and therefore recoverable on the standard basis
indicates to us that the drive for reform is entirely budget based.
If pursued it is certain to be counter productive. An important
factor in civil litigation is equality of arms. We know that the
Defendants (e.g. the NHSLA and the Medical Defence Unions) already
pay their experts more than is allowable under the current Legal
Aid regime (a general cap of £200 an hour). We know that these
organisations pay higher fees to secure the best experts. This
practice is effectively risking Claimant’s rights to access to
justice. If experts are paid generally more by one side than the
other then the inevitable will happen.
We therefore urge the government to
consider very carefully the long term effects of embarking on a
short term reform which may have unintended consequences. Experts
should charge a fair and reasonable fee.
In response to question 39 we would
comment as follows:-
- At the moment it would be difficult
for a clear structure of fees introduced for experts to be paid
from Legal Aid. Consensus would need to be achieved with the
Defendant organisations ultimately the payment of expert’s costs
with what is reasonably recoverable on a standard basis in
court.
- A short term reduction of 10% would
drive experts away and decrease access to justice.
- We consider that it will be difficult
for the LSC to control expert’s fees on a structured basis (fixed
and graduated) because it does not control the market. Experts will
be driven away. Legal Aid costs will soar.
- We do not agree with the
categorisation of fixed and graduated fees in Annex J. The
introduction of such would be detrimental to this litigation.
Alternative Sources of
Funding
Like the government, it is impossible for us to assess fully the
impact of any proposal, its feasibility in practical terms or to
quantify the potential benefits. However, in principle we support
any reasonable scheme which is not too bureaucratic to help
citizens gain access to justice. Both schemes proposed by the
government look like they involve significant administration costs
in supplementary Legal Aid scheme.
We fully support an SLAS scheme where a percentage of funds are
recouped from cases which are successful. We agree with, say, a
contribution from the Claimant of 10% of the recovered costs in
successful cases. There could be a cap on the amount, say, to 10%
of the damages. This would give the Claimant real interest in the
way cases are conducted and would also allow successful Claimants
to provide a “thank you” to the LSC for supporting their case. This
would be a far fairer way to introduce alternative funding and
since approximately 91% of VHCC cases are successful provide a real
source of revenue to support LSC.
Question 43
Yes, see above.
Question 44
If the Jackson proposals are accepted
and a 10% increase in general damages is introduced then this would
be a simple way to achieve recovery. However, in many cases general
damages are not known (global settlements etc) and there may be a
temptation by practitioners to diminish the value of the same so as
to reduce payment to the LSC.
All cases allow for recovery of costs.
A 10% “tariff” on the agreed costs up to a maximum of 10% of the
damages might solve this problem.
Legal Protection
Insurance
The government should be wary of the perceived benefits of legal
protection insurance. The conditions imposed by many legal
protection insurers make it very difficult to pursue cases funded
this way. The major objective of these insurers is not to assist
and represent clients but to make a profit. This results in a
mentality which aims to refuse cover or provide it at very low and
restrictive levels. Many of these insurers “farm” cases to lawyers
who do not have the necessary skills to undertake complex cases
such as clinical negligence cases. We doubt whether the success
rate for LEI insurers is at the rate of 91%.
Governance and
Administration
The LSC does its best with limited resources. However, its
attitude is, as above, to refuse other than to facilitate.
Moreover, since the government announced its budget cuts and its
proposal for reform of Legal Aid in England and Wales, service has
noticeably decreased in efficiency. Applications for civil Legal
Aid in clinical negligence cases now take many months. In almost
every case public funding is initially refused (on grounds of
merits) and an application for review is required. This leads to
delay and increased cost. In recent years, with the implementation
of the cost plans in clinical negligence cases amendments to
certificates are generally more efficient than in the past.
We believe that the payments on
account system does work. We agree that the standard monthly
payment system is good and should be retained.
Bill submission and final settlement
of Legal Aid cases is a lengthy process and could be speeded up. We
agree that the current programme of the LSC to make greater of use
of electronic working is making the system more efficient.
Questions 46 – 48
Please see above.
We hope that you have found our input
useful. We would be happy to provide clarification or expansion if
this were required.
Yours sincerely
Paul McNeil
For Field Fisher Waterhouse
LLP
Enclosure attached