LASPO countdown | Shifting the costs burden in clinical negligence cases is unjustified

April 2013 signals a change for the legal sector when Lord Justice Jackson's reforms come into force in the LASPO Act.

The unprecedented changes about to be introduced by the Act will remove access to legal aid, except in a very limited number of cases, and will place the burden of paying some legal costs in both clinical negligence and personal injury claims on the injured party.

These changes are being implemented in a bid to both save the government millions of pounds in relation to claims against public bodies such as the NHS and local authorities, and to deter the myth of an increasing 'compensation culture' in the UK.

There has been much 'spinning' about the compensation culture '“ found on independent analysis not to exist '“ and fat cat lawyers creaming in profit from high success fees. It is true there have been some unpalatable examples of profiteering, but the vast majority of practitioners dealing with complex cases such as clinical negligence have balanced the recovery of success fees against the losses and non-recovery at all on cases they have been prepared to investigate to allow the public access to justice.

The reforms are widely unpopular among claimant practitioners and the public is still largely unaware of how this will impact them. The changes will mean that an individual injured either through clinical negligence or personal injury may have their compensation significantly reduced.
Some of the legal fees incurred may have to come out of the settlement received rather than being covered by the defendant, which is the current system.

Double blow

While purporting to save the taxpayer money in a small and limited number of cases, the new legislation will not only limit the access to justice for those who simply cannot afford it, but also serve as a double blow for those who rely on any settlement secured to pay for essential treatment, care, equipment and house alterations that they would not have needed had they not been injured in the first place.

For practitioners, this only serves to punish the innocent injured party further during a time when they are most vulnerable and in need of the legal system to protect their rights.

Clinical negligence cases in particular are complex and expensive to investigate, serious claims such as severe brain injury can take years to conclude with clients requiring significant compensation simply to cover the cost of essential adaptations and to pay for vital, often round-the-clock care.

Despite the government's attempt to save £350m by abolishing legal aid, regardless of evidence that the costs will actually increase, the changes will make the pursuit of cerebral palsy birth injury claims for example, even more difficult. Even where legal aid remains available, there are increasing restrictions in its usefulness in properly investigating and pursuing cases.

Piecemeal approach

Claimants will struggle to find a solicitor willing to pursue claims with complexity and uncertainty. In the same Act, the government has seemingly removed a key element of the Access to Justice Act 1990 which allowed claimants to investigate and pursue claims on the basis that if they succeeded, their lawyer would obtain a success fee from
the opponent.

The government now maintains that success fees will be taken directly out of the injured person's entitlement to compensation. How can that possibly be right in a just and civil society '“ surely those who are guilty of negligence should pay for their mistakes?

It is clear that this bill will serve only to attack the legal rights of the sick, vulnerable, bereaved and injured.

Even Lord Justice Jackson who proposed some of the changes did not agree that legal aid should be withdrawn. The government, while claiming to accept Jackson LJ's proposals, has been piecemeal in its selection, contrary to the overall package that Jackson suggested might work.

To add further woe, the new rules on cost management will add further pressure on the lawyer/claimant relationship and risk even more funds being diluted from the claimants' compensatory award. The cherry picking of cases is highly likely to become more widespread as lawyers become increasingly risk averse.

Firms will have to build in more efficiency into their working practices and business models, while funding options will likely become even more complicated, with undoubted satellite litigation to iron out any issues on interpretation likely in the future. It doesn't bode well for the public's access to justice. For those who continue with this line of work it will indeed be a brave new world.