Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Stephensons Solicitors (LA 98)

1. The following submissions are made on behalf of the clinical negligence department of Stephensons Solicitors LLP, a UK top 100 law firm based in the North West of England. We are one of the largest teams of clinical negligence solicitors in Greater Manchester, Merseyside and Lancashire and have extensive experience in representing Claimants across England and Wales.

2. As a firm, we have been undertaking legally aided work for around 25 years and we have held a Legal Aid franchise since 1999. We therefore feel we are suitably qualified to comment on the likely implications of the Legal Aid, Sentencing and Punishment of Offenders Bill becoming law.

3. We have considered the Bill and the government response to consultation CP12/10 in detail. We note that the government proposes to press on with the reforms largely as set out in the consultation.

4. We agree with the Law Society that the Bill represents "the single biggest attack on state-funded legal advice for the poor and vulnerable since the legal aid system was introduced".

5. We believe that the Bill, as drafted, is fundamentally flawed and will result not only in the denial of access to justice to many of society’s poorest and most vulnerable citizens, but will also give rise to a number of inadvertent consequences. We feel that these consequences have not been properly considered by the government.

6. We therefore urge the government to reconsider implementation of the Bill and hereby make the following submissions:

Part 1: Legal Aid

7. We note that the government intends to continue with its proposal to remove clinical negligence from scope for Legal Aid. We would urge the government to reconsider this proposal, not only to ensure that the poorest and most vulnerable people in society have access to justice but also as the proposal would result in an increase in public expenditure, not the decrease which the government envisages.

8. It is our opinion that Legal Aid is of fundamental importance to the fairness of the justice system, affording all citizens with the right to gain access to justice. In a civilised democratic society, Legal Aid should not only be provided in cases where life or liberty is at stake or where there is a risk of harm or immediate loss of a citizen’s home. We strongly believe that Legal Aid should enable those who would not otherwise have the means, to have access to justice, particularly in cases where they have been seriously injured through no fault of their own, as in clinical negligence cases.

9. This view is shared by Lord Justice Jackson whose report entitled "Review of Civil Litigation Costs Final Report" states:

" 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."

10. The Jackson review makes it clear that, at the very least, the current Legal Aid system must be maintained to ensure that the poor and vulnerable continue to have access to justice.

11. It is widely accepted that the Legal Aid system promotes access to justice and, by cutting the current provision in whole or in part, the government would be at risk of breaching its obligations under the ECHR.

12. We urge the government not to ignore the recommendations of Lord Jackson with regards to maintaining Legal Aid in its current form.

13. As special ist clinical n egligence solicitors, it is our experience that Legal Aid is rarely granted as the eligibility criteria has become increasingly difficult to meet over recent years. For instance, the current eligibility criteria means that potential damages in a case must be as sessed as being around £75,000 or greater, which rules out a large number of claims from Legal Aid funding at the outset. In addition, only 36% of the population are currently entitled to Legal Aid which has reduced from 90% when the scheme was originally introduced.

14. We therefore believe that the current eligibility criteria means that, in practice, only the poorest and most deserving clients are entitled to Legal Aid and the system is therefore achieving its purpose. Making further cuts would be unwarranted and would remove access to justice from the most needy.

15. The government summarises its position regarding the provision of Legal Aid at paragraph 4.166 of the consultation. The government does not believe that Legal Aid funding is justified for clinical negligence cases because "there is a viable alternative source of funding". The proposal is therefore to exclude clinical negligence cases from Legal Aid on the basis that Conditional Fee Agreements (CFAs) are more likely to be readily available for these cases than in other types of claim.

16. If the government implements its proposals for reform of Legal Aid as drafted, many people will be denied their fundamental right to access to justice. It is simply misguided to suggest that there is a viable alternative source of funding for such cases.

17. The majority of cases which currently receive Legal Aid funding are complex and require extensive investigation in the early stages of the claim in order to prove both breach of duty and causation. This includes paying for substantial disbursements upfront, including medical records and medical reports from experts in various medical fields, which can cost tens of thousands of pounds. As these cases are so risky, it is unlikely that solicitors will be able to fund them with Conditional Fee Agreements.

18. We note that at paragraph 4.167 of the Consultation, the government concedes that there are cases, such as obstetric cases, with high disbursement costs, which are currently funded by Legal Aid for which clients might find it difficult to obtain funding under a Conditional Fee Agreement. We would like to point out that obstetric cases are just one example of where clients would struggle to obtain funding if Legal Aid were to be withdrawn.

19. We have represented clients who have suffered very serious injuries or even death as a result of the negligence of practitioners in many other fields of medicine. We strongly believe that these clients should be entitled to pursue the compensation that they deserve and such cases should therefore continue to be included in scope for Legal Aid funding.

20. Many of our clients require ongoing medical treatment and lifelong care as a result of their injuries. We have achieved settlements for numerous clients, including severely brain damaged children and adults, which will fund the care they so desperately need for the rest of their lives. The compensation awarded has made a huge difference to the quality of life of these clients and that of their families, many of whom would not have been able to pursue their claims without the benefit of Legal Aid. These clients and their families are always very grateful for the assistance that Legal Aid offers them in extremely difficult circumstances.

21. We note that a survey of Action Against Medical Accidents (AvMA)’s specialist panel solicitors suggests that at least 50% less cases will be taken on if the legal aid reforms go ahead. We are also interested to note the response of the NHS Litigation Authority (NHSLA) to the consultation which acknowledges that many cases would not be taken on under the new system.

22. Paragraph 4.165 of the consultation is correct in stating that Legal Aid has helped to limit NHS legal costs.

23. While the Ministry of Justice estimates it will save £10 million a year by removing clinical negligence from scope for legal aid, AvMA estimates that if all cases which are currently successful under Legal Aid were successful under the new CFA arrangements, "the cost to the NHS of investigating new claims and settling previously legally aided cases under the reformed system would amount to at least as much". This would result from the NHS having to pay for expensive insurance premiums to cover the fees for expert reports.

24. In addition, by losing the controls and protection offered by the current Legal Aid system, the NHS would spend more money investigating and defending spurious claims generated by non-specialist solicitors. At present, all solicitors who undertake legally aided clinical negligence work are specialists in the field and have sufficient experience to be able to identify claims without merit at an early stage, thus reducing costs.

25. Defending claims brought by litigants in person and claimants represented by non-specialist solicitors will require additional work which will result in a significant increase in NHS costs. Therefore, despite the likely reduction in some claims volumes, the corresponding reduction in costs, which the government anticipates, will not be achieved.

26. The increase in NHS costs is therefore likely to far outweigh any savings made by the Ministry of Justice. As fewer claims would be brought under the new arrangements, the NHS would also lose out on valuable learning which arises from reported clinical negligence incidents. As the NHS would be required to investigate less claims, patient safety may therefore be compromised, resulting in further injuries and deaths as a result of avoidable medical errors.

27. We note that AvMA estimates "just one additional successful clinical negligence case a year as a result of weaker patient safety could wipe out the estimated ‘savings’ from scrapping Legal Aid".

28. Cutting Legal Aid would also have inadvertent knock-on effects for expenditure in other government departments. For instance, we believe that resolving clinical negligence cases at an early stage often reduces the costs paid out by the NHS for medical treatment and also the amount a client is paid in welfare benefits. Withdrawing Legal Aid from clinical negligence work will therefore be a false economy.

29. We note that the NHSLA unequivocally support the retention of Legal Aid for clinical negligence cases using current eligibility criteria.

30. We also note that Lord Jackson is strongly opposed to the withdrawal of Legal Aid from clinical negligence, stating that the proposed cuts are "contrary to his recommendations" and its withdrawal from clinical negligence is the "most unfortunate" of all the proposals.

31. Cutting Legal Aid will create a legal system with two tiers where only the rich, who have the means to pay for legal representation, will have access to justice. This is fundamentally wrong in a modern society.

32. For the reasons set out above, we strongly oppose the proposal to abolish Legal Aid funding in clinical negligence cases.

33. We do not agree with the government’s proposals to introduce a new scheme for funding individual cases excluded from the proposed scope, which will only generally provide funding where the provision of some level of legal aid is necessary to meet domestic and international legal obligations or where there is a significant wider public interest.

34. We note the concerns of the NHSLA regarding the operation of such a scheme and the lack of details regarding eligibility criteria. We share the concerns regarding the proposal that "very serious cases of negligence" would receive funding. We believe the criteria for such funding would need to be clearly defined before such a proposal could be properly considered as the current lack of clarity is likely to prove difficult in practice.

35. We believe that granting Legal Aid in such cases would be subject to the wide discretion of the Legal Services Commission and, in reality, it would be rarely granted. Similar criteria are currently used to assess whether public funding can be granted for certain personal injury cases. However, in practice, it is our experience that it is virtually impossible to obtain Legal Aid to fund personal injury claims and we fear this would also be the case for clinical negligence cases.

36. We do not agree with the government’s proposal to amend the merits criteria for civil legal aid so that funding can be refused in any individual civil case which is suitable for an alternative source of funding, such as a Conditional Fee Agreement. This would simply mean that the Legal Services Commission would be able to refuse Legal Aid for all clinical negligence cases, arguing that other funding arrangements are always available, even though it is often not possible to offer alternative funding for the reasons set out above.

37. If public funding is abolished or reduced, solicitors will be more selective in the cases they take on so the number of litigants in person will increase as they are refused legal representation. This will have a significant impact on the resources required by the Court service, Defendant solicitors and organisations such as the NHSLA, Medical Defence Union (MDU) and Medical Protection Society (MPS) due to the increase in time required to deal with these cases.

38. Due to the complexity of clinical negligence litigation, we believe that the majority of litigants in person would struggle to pursue their claims, making it almost impossible for the severely injured and disabled to manage without representation.

39. In addition, the proposed cuts to voluntary and charitable organisations will limit the assistance that litigants in person will have access to.

40. The Community Legal Advice Telephone Helpline is a reasonable idea in principle. However, we believe this would need to be granted sufficient funding and be entirely independent of the Legal Services Commission.

41. In clinical negligence cases, we do not believe that legal advice can adequately be given over the telephone. Clinical negligence cases are complex and require thorough investigation, both from a legal and a medical perspective. Medical records and expert reports usually need to be obtained and considered before clients can be correctly advised. It is therefore misguided for the government to suggest that "cases can be dealt with through a community services helpline".

42. We also believe it is not in the government’s best interests to reduce the fees of medical experts instructed in clinical negligence cases.

43. We note the government acknowledges that Very High Cost Cases are usually successful, the current success rate being 91%. This is due to the solicitors franchised by the Legal Services Commission being highly experienced in conducting clinical negligence cases and selecting the appropriate experts.

44. The government scheme to reduce experts’ fees will limit the choice of experts available and some of the best experts will be unavailable. This will be detrimental to the success of many cases in a field of law which relies heavily on expert evidence. This will reduce the success rate of cases funded by Legal Aid and increase the overall clinical negligence costs for the government rather than reduce them. Pressing ahead with the proposal will therefore be counter-productive.

45. It is already a requirement of the Legal Services Commission that experts are transparent with their fees and have to provide a breakdown of the work carried out and time spent on a case.

46. Experts’ fees are largely recovered from the Defendants in successful cases and, in the vast majority of cases, these fees are deemed to be reasonable and recoverable, both on the standard basis and on the objective opinion of the Court.

47. In civil litigation, equality of arms is an important principle to ensure both parties are on an even footing. The NHSLA and the Medical Defence Unions currently pay their medical experts more than is allowable under the present Legal Aid regime and they do this in order to secure the best experts. This practice limits the Claimant’s right to access to justice and the gap between Claimants and Defendants will widen further if the proposals to reduce experts’ fees go ahead.

48. We agree that experts should charge a fair and reasonable fee. However, the proposed 10% reduction in experts’ fees would limit the choice of experts available and restrict access to justice for Claimants.

Part 2: Litigation Funding and Costs

49. We strongly oppose Lord Jackson’s proposal to prevent the recovery of success fees and ATE premiums from Defendants.

50. We believe the proposal for solicitors to claim success fees from clients’ general damages is fundamentally flawed.

51. It is proposed that the level of general damages would be increased by 10% to compensate Claimants for this. However, it is unclear how this increase would be guaranteed in practice as the level of general damages is not always explicit, for example in global out of court settlements. In addition, it is not clear whether ‘general damages’ would include only pain, suffering and loss of amenity or other types of damages which are sometimes included under this heading as well. Further clarification is therefore needed.

52. In any event, a 10% increase in general damages is likely to be very minor compared with the cost of the success fees claimed and therefore Claimants are likely to lose a significant amount of the compensation they so desperately need. This is simply unfair and unacceptable and removes the incentive from Defendants to fully investigate and settle claims promptly if appropriate.

53. The proposal to limit the success fees claimed by Claimant’s solicitors to 25% of past losses and general damages will have a significant impact on the number of clinical negligence cases pursued.

54. The limit on success fees will mean that solicitors will have little incentive to investigate risky clinical negligence cases. As stated above, investigating a potential clinical negligence claim is often expensive and, under the new regime, many solicitors will simply not be able to afford to do so. This will prevent access to justice for many clients.

55. The government has proposed that "one-way costs shifting" should apply in order that Claimants are not responsible for the costs of Defendants should their claims be unsuccessful. It is proposed that all but the very rich would benefit from this scheme but further details regarding eligibility criteria are essential. If access to justice is to be preserved using Conditional Fee Arrangements, the position needs to be clarified.

Part 3: Sentencing and Punishment of Offenders

56. As clinical negligence solicitors, we are not qualified to comment.

Conclusion

57. In conclusion, the current funding system using a mixture of Legal Aid and Conditional Fee Agreements allows the majority of clinical negligence cases to receive appropriate investigation.

58. The proposal to remove clinical negligence from the scope of Legal Aid combined with the reduction in recoverability of success fees in CFA funded cases will be detrimental to the fundamental rights of citizens on a moral and financial level. We agree with AvMA that the proposals are also likely to be detrimental to patient safety.

59. We therefore urge the government to treat clinical negligence as a special case in order to protect access to justice for some of the poorest and most vulnerable members of society who have suffered devastating injuries through no fault of their own.

September 2011

Prepared 11th October 2011