Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Walker Smith Way Solicitors (LA 105)

OUR CONCERNS

· The removal of Clinical Negligence from scope goes directly against the very strong advice of Lord Justice Jackson in his report that there be no further restriction on either scope or eligibility for Legal Aid in civil litigation.

· The proposals exhibit a lack of real understanding as to the immense difference in complexity between road traffic accident and pavement tripping claims on the one hand and Clinical Negligence claims on the other.

· The proposals erroneously equate "complexity" with "high value" when a low or modest value claim may in fact possess greater complexity in terms of law, fact and medical opinion as to liability than does a high value claim.

· The "double whammy" of both withdrawal of Clinical Negligence from Legal Aid scope and the abolition of recoverable success fees and ATE insurance premiums in particular will serve to dramatically restrict access to justice.

· The impact studies upon which the Jackson Report and the Consultation Paper relies for their conclusions are inadequate and flawed when it comes to data in relation to Clinical Negligence claims e.g. the studies performed by Professor Fenn did not include Clinical Negligence claims as a specific type of claim and a 10% increase in damages will be inadequate to compensate injured persons for the impact of success fees.

· Most Claimants currently eligible for Legal Aid funding are unable to afford BTE insurance premiums at their current level let alone at such higher level as would be required if Clinical Negligence were to be fully covered by these policies. Currently most such policies are very restrictive in terms of the nature of the negligence alleged.

· A substantial number of Clinical negligence claims involve the poorest/most deprived sector of the community because almost by definition they exhibit the greater number of health problems overall.

· The removal of Legal Aid funding will impose a higher costs burden on the NHSLA. The NHSLA oppose the withdrawal of Clinical Negligence from scope.

· This is complex litigation which most lay individuals would be unable to conduct without specialist legal support and representation. It requires specialist legal knowledge and experience. Currently to conduct legally aided work the solicitor’s firm must adhere to strict quality standards. Withdrawal of Legal Aid will uncontrollably open the market up to the ambulance chaser breed of lawyer/claims managers.

The above is by no means an exhaustive list of our concerns but we do clearly recognise that in the current financial climate there is a need to restrict public expenditure and make more effective use of such expenditure. With that in mind we advance and support the following proposals to achieve an efficient and cost effective use of resources whilst maintaining a proper and equitable access to justice for Clinical Negligence claimants.

OUR RECOMMENDATIONS

1. In each successful Clinical Negligence claim both Solicitor and Counsel to pay into a fund (specially designated for Clinical Negligence work only) 10% of their recovered fees. Based on statistics provided by the NHSLA and LSC we believe that this is likely to produce upwards of £6 million per annum if Legal Aid funding is maintained at its current level. Such a scheme was in place until around 12 years ago and is eminently feasible and simple to administer..

2. Restrict Legal Aid funding to the "investigation stage" of a case only. Cases to be pursued thereafter on a Conditional Fee Agreement with recoverable but staged success fees and insurance.

3. Solicitor’s and Counsel’s hourly charging rates to be limited to a maximum of the Outer London rate (London 3) currently £267.00. There is no justification in our view for Clinical Negligence Claims to be dealt with by City of London firms at City of London hourly rates (£409.00). The application of such Central London rates has resulted in unconscionably high levels of legal costs when success fees have been applied in addition.

4. A clearly defined and fixed but staged success fee structure be put in place through a mediated agreement between Claimant Clinical Negligence Solicitors and the NHSLA. This would encourage early consideration of the issues and early settlements.

5. The equivalent of the "Putting Things Right"/NHS Redress in Wales Scheme be put in place in England for claims valued up to £25,000. This will include joint instruction of experts and fixed fees.

6. Conditional Fee Agreements in Clinical Negligence Claims to retain fully recoverably success fees and ATE insurance premiums.

7. Abolish referral fees for Clinical Negligence and make it a criminal offence to seek or offer such fees.

General Civil Funding

OUR PROPOSALS ARE:-

1. Let existing initiatives, designed to progress cases more efficiently and cheaply, bed in and subject them to detailed assessment before introducing any further wide ranging changes.

2. Restrict and control "Credit Hire" at the very least. Complete abolition would in our opinion be appropriate.

Walker Smith Way is a large regional firm undertaking a wide range of "High Street" practice work but specialising in Employers Liability and Clinical Negligence personal injury claims. We hold the LSC Quality Mark for Clinical Negligence and were founded over 150 years ago.

October 2011

Prepared 11th October 2011