Rt Hon Kenneth Clarke QC MPBY EMAIL: legalaidreformmoj@justice.gsi.gov.uk
Lord Chancellor and Secretary of State for Justice
102 Petty France
London
SW1H 9AJ
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 Fieldfisher 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