Written evidence from the Association
of Personal Injury Lawyers (AJ 06)
The Association of Personal Injury Lawyers (APIL)
is a not-for-profit organisation with more than 4,700 members
who help injured people to gain the access to justice they deserve.
Our membership comprises mostly solicitors, along with barristers,
legal executives, paralegals and some academics who are all committed
to, or sympathetic to serving the needs of people injured through
the negligence of others. The association is dedicated to campaigning
for improvements to the law to enable injured people to gain full
access to justice and promote their interests.
The aims of the Association of Personal Injury Lawyers
(APIL) are:
To promote full and just compensation for all types
of personal injury.
To promote and develop expertise in the practice
of personal injury law.
To promote wider redress for personal injury in the
legal system.
To campaign for improvements in personal injury law.
To promote safety and alert the public to hazards
wherever they arise.
To provide a communication network for members.
APIL's experience is limited to personal injury and
clinical negligence.
EXECUTIVE SUMMARY
APIL recognise the political appetite for further
efficiencies and streamlining particularly given the current economic
climate however, the most disadvantaged and poorest members of
society will be hit the hardest.
Lord Justice Jackson's recommendations largely ignore
the impact of the new process for lower value fast track road
traffic accident (RTA) claims.
The new road traffic accident claims process provides
a procedure for dealing with 75% of all claims within a streamline
fixed cost process.
At a stroke the new RTA claims process which was
introduced with industry wide consensus following negotiation
(which took place during Jackson's year long review on civil cost)
has undermined his key conclusions that costs are disproportionate.
Behaviours of defendants and their insurers who are
not only responsible for the initial injury but also contribute
to increased costs by making claimants jump through hoops causing
delay or discouragement.
Removal of legal aid for clinical negligence cases
coupled with Jackson's primary proposals will reduce access to
justice and take damages from the most vulnerable.
Leading counsel suggests that primary proposals for
reform could discriminate against the disabled and infringe their
human rights. There are also issues surrounding the Equality Act
2010 and Disability Discrimination Act 1995.
The cost saving of 17 million to the legal aid budget
if clinical negligence claims are excluded is less than 1% of
the overall legal aid budget of 2.2 billion.
Removing clinical negligence from legal aid whilst
reducing the availability of no win no fee agreements will result
in the NHS becoming even more unaccountable to those injured through
its negligence.
Damages are purely compensatory and therefore APIL
believes that it is fundamentally wrong that costs should be paid
out of them.
Damages for pain suffering and loss of amenity are
too low, meaning that it is totally unsatisfactory for costs to
be deducted from damages also.
Data from a catastrophic injury case load demonstrates
that LJ Jackson's proposal to end recoverability of success fees
by offsetting with an increase in general damages would be wholly
insufficient and would adversely affect the most seriously injured.
There has been no consideration as to the impact
alternative business structures may have on access to justice.
1. APIL understands
the need for costs to be streamlined and systems to be efficient,
particularly in the current economic climate. But this should
never be at the expense of vulnerable, injured people, and cuts
to legal aid coupled with Appeal Court Judge Lord Justice Jackson's
primary recommendations will have the effect of not only taking
much-needed compensation from injured people but also barring
access to justice. This will hit the poorest in society the hardest.
2. Lord Justice Jackson commenced his review
of civil litigation costs, at the request of former Master of
the Rolls, Sir Anthony Clarke, in November 2008. This review looked
at civil litigation in the round and did not just concentrate
on personal injury and clinical negligence as the most recent
consultation appears to have done.
3. Jackson LJ's work largely ignores the impact
of the work undertaken by the Ministry of Justice (MoJ) at that
time to streamline the process for lower value fast track road
traffic accident cases. During Jackson LJ's yearlong review the
Ministry was working with both sides of the industry to improve
the speed at which injured people received their compensation
and to fix the amount of work involved in pursuing these claims
in return for fixing the fees recoverable. The new claims process
introduced this year deals with 75% of all personal injury claims.[4]
4. The conclusions reached by Jackson LJ, therefore,
need to be approached with caution as a large percentage of the
personal injury market has been reformed to be streamlined and
more cost efficient and whilst teething problems are many, because
of the speed with which the reforms were introduced, in the long
term this process could be successful.
5. It is essential that we maintain individual
human rights and prevent injury where possible through social
responsibility. Negligent actions will unfortunately happen and
when this occurs we must have a system that provides access to
care, rehabilitation and full redress to ensure, so far as possible,
that the injured person is put back into the position that he
was in before the negligence occurred.
6. Whilst efficiency of process is important
it must not be to the detriment of the injured person, who should
be at the heart of our compensation system. APIL believes the
civil justice system should provide:
The right to bodily integrity.
Equal access to justice for all in our society.
Protection for those who have been injured by the
negligence of others.
Public confidence in the system.
Full redress.
Freedom to chose a lawyer.
An insurance system that offers protection to all
concerned.
7. In every claim for personal injury the burden
of proof rests with the injured person. Nothing about a case is
presumed and the individual must prove each element of his claim,
the facts of his case, duty of care, breach of duty, causation
and quantum. The defendant not only caused the injury but is also
free to make a claimant jump through hoops, causing delay or discouragement.
8. Removing legal aid for clinical negligence
cases coupled with the primary proposals currently being consulted
upon by the Ministry will have the effect of making it difficult
for any person with a meritorious case but with difficulties on
liability to pursue their claim. There is a streamlined process
for the more straightforward road traffic accident claims and
it is essential that it is recognised that the more complex cases
must not be prevented from being brought by the removal of funding.
9. APIL along with PIBA[5]
obtained advice from leading counsel in September this year which
advised on the implications of the Jackson proposals to reverse
the recovery of CFA success fees; cap success fees at 25% of general
damages and damages for past losses; and increase general damages
by 10%. The advice expresses considerable doubts about whether
the proposals could be defended under the European Convention
of Human Rights, if applied to seriously or catastrophically injured
claimants. Specifically, counsel have advised that the proposed
changes would affect the right of access to justice of such claimants,
which is guaranteed by Article 6 of the Convention (in conjunction
with case law which deals with the issue of adequate means of
funding) because they would be reliant on finding a suitable legal
team prepared to forgo payment for the financial risk of conducting
the claim on a CFA. Article 14 of the Convention protects such
individuals who may be at a disadvantage in this way.[6]
Counsel was also of the view that the vast majority of claims
could be vulnerable to challenge under section 21D of the Disability
and Discrimination Act 1995 and section 19 of the Equality Act
2010.
10. The actual
cost of clinical negligence cases to the Government in funding
is 17million a year out of a legal aid budget of 2.2 billion.[7]
Therefore the overall cost saving to the legal aid budget if funding
is removed for clinical negligence case is less than a 1% saving.
11. In absence of legal aid or some other adequate
method of funding clinical negligence cases there is little way
of holding the NHS accountable for mistakes that it makes. Bringing
a claim makes the NHS accountable for its actions in a way that
the complaint procedure does not. In the period January to September
2009, 11,449 adverse incidents were reported to the Reporting
and Legal Services Department at the National Patient Safety Agency.[8]
3,679 incidents were reported to have resulted in death[9]
and 7,770 caused severe harm.[10]
In the same period only 6,652 claims were brought against the
NHS.[11]
Approximately 55% of claims received by the NHSLA in the last
20 years have been successful.[12]
12. Damages
are purely compensatory and therefore APIL believes that it is
fundamentally wrong that costs should be paid out of them. This
is what is being proposed as an alternative to legal aid. We believe
that the wrongdoer should pay. It is this principle that allows
an injured individual to challenge the large defendants such as
the NHS. A claim for damage is not a windfall but an attempt to
restore the person, as far as possible to their pre-accident status,[13]
by those that have been negligent (to the extent that money can
do this). Why then should the defendant and their insurance representative
be given a rebate by not fulfilling their obligation.
13. In cases
of serious injury damages for future losses, such future care,
continuing medical costs and loss of earning capacity are likely
to be the largest element of the compensation awarded. These losses
are difficult to value accurately, because there can be no certainty
about what will happen in the future or about what would have
happened had the accident not occurred. Damages therefore have
to be assessed on the basis of many assumptions about the future,
as they will affect claimants personally and more widely.
14. The aim
in assessing those damages is to provide a capital sum which can
be invested to yield exactly enough to cover the anticipated needs
and loss of earnings every year, for as long as they are expected
to continue. The period of time over which these needs will continue
will be determined by the court and/or agreed by the parties if
a case is settled.
15. Given the
difficulty with assessing these needs accurately and the anticipated
return on investment of any award, a discount rate of 2.5% is
currently applied. This rate was set in 2001 when the return on
investments was considerably higher than it is now. The discount
rate ensures that the injured person is not over compensated.
Currently an investment of around 6 or 7% gross return needs to
be found to ensure that their compensation keeps pace with inflation.
Presently this is impossible. In addition to these problems claimants
with accommodation needs are also prevented from full recovery
of accommodation costs[14]
and in effect would have to borrow from other areas of damage,
in the award which will have been careful calculated to compensate
the injured persons other needs, for example loss of earnings.
16. All these
problems coupled with the Law Commission's recommendations, (made
over 10 years ago and still not fully acted upon) that concluded
damages for pain suffering and loss of amenity were too low, mean
that it is totally unsatisfactory for costs to be deducted from
damages also.
17. APIL remains concerned about the handling
of the 25% of claims not covered by the new streamlined system.
Research conducted by APIL president Muiris Lyons' firm, Stewarts
Law, showed that the proposal to offset abolishing recoverability
of success fees by an increase to general damages of 10 per cent
would be nowhere near sufficient for those with serious injuries
within this 25 per cent bracket. The maximum net loss arose in
a claim for a young tetraplegic man and would have resulted in
a reduction in his damages of £236,044. The Ministry of Justice
has been provided with a full copy of this report and data.
18. None of
the proposed reforms have been considered in the context of the
effect that alternative business structures, which are to be introduced
to the system next year, may have on access to justice.
December 2010
4 Page 38 Case track limits and the claims process
for personal injury claims summary of responses. Back
5
Personal Injury Bar Association is a specialist bar association
for barristers who practice in the field of personal injury law. Back
6
A copy of the advice was sent to the Secretary for State for Justice. Back
7
Legal Aid (Clinical Negligence Cases) Oral Answers to Questions
- Justice House of Commons debates, 23 November 2010, 2:30 pm. Back
8
Patient Safety Incident reports Quarterly data report 12, 13,
14. Back
9
Same period and reports as above. Back
10
Same period and reports as above Back
11
NHSLA Report and Accounts 2009-10 page 13. Back
12
NHSLA Factsheet 3 as at June 2010. Back
13
Lord Blackburn in Livingstone v Rawyards Coal (1880) 4
App Cas 25 : "I do not think that there is any difference
of opinion as to it being a general rule that, where any injury
is to be compensated by damages, in settling the sum of money
to be given for reparation of damages you should as nearly as
possible get that sum of money which will put the party who has
been injured or who has suffered, in the same position as he would
have been if he had not sustained a wrong...". Back
14
Robert v Johnston [1989] QB 878. Back
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