What the Justice Bill will really mean: 2. No more legal aid

The so-called ‘Justice Bill’ currently going through Parliament will cause massive problems for claimants in two major areas. By stopping conditional fee agreements (‘no win, no fee’) and recoverability of ATE (after the event) legal expense insurance in personal injury cases. And by removing legal aid in clinical neligence cases.

These problems seem not to be appreciated or even understood by the Government. It is complicated, and all the arguments seem to get lumped together whenever we read about them. I hope these posts will clarify things a little! Our new partner Rosamund Rhodes-Kemp looks at how the Bill will affect clinical negligence cases.

2. It would abolish legal aid for clinical negligence cases.

The Bill’s supporters want to save the country money. And, they argue, the proposed changes won’t affect legitimate claims. After all, they say, ‘if you’ve got a strong enough case, you’ll win it.’ So instead of the state providing financial support for a clinical negligence action, they’re expecting the lawyers to do this. In the knowledge that they’ll probably get their money back in the end.

But in the real world, things don’t work like that. Because the up-front costs involved in bringing clinical negligence cases to court are often massive. Way beyond the purses of most individuals and, frequently, of the specialist law firms qualified to fight them.

When a  hospital decides to deny negligence – however preposterous that denial might appear to you and me – a case must be prepared. Expert witnesses found to support the case. Research carried out. Barristers retained. Medical reports drafted. Often at huge expense. If legal aid is taken away and the cost has to be borne by the injured person’s lawyers, it’s highly likely that the hospital’s lawyers will spin out the cases even longer.

Already a great many cases that are ultimately successful are intially denied or defended. In a world without legal aid, the most serious cases will just be impossible to run. Without any financial backing, the severly injured will be denied representation.

Telling people ‘put your money where your mouth is’ ISN’T justice. But that’s what the proposals of this Bill are really saying to a claimant who simply doesn’t have that money, regardless of the strength of his or her case!

Put yourself in that position. How would you feel if your wife, husband, son or daughter was to visit their local NHS hospital for treatment to make them better. But instead, as a result of someone else’s negligence or carelessness, they were to die? Or become a paraplegic?

You’d want to do everything in your power to get them financial support for their irreparably damaged life, wouldn’t you? And you’d want whoever was responsible to shoulder their fair share of that burden. Something you could only achieve through the courts if the defendant were to deny liability.

Yet under the proposed new legislation – when it comes to seeking justice – you’d be every bit as helpless as them.

The stakes would be raised so high that only defendants like NHS hospitals – backed, of course, by government tax revenues – could dare contemplate the financial costs of legal action. As my colleague Marcus Weatherby so powerfully put it:

“I think people have a legitimate expectation that the administration of justice will have a moral spine running through it. They will not however expect a government to re-organise access to justice along lines that provide windfalls for bad employers. Insurers who do not promote safe practices. Or those who – through their own carelessness or poor judgement – injure other people.

The changes will bring to an end the principle that an injured party is entitled to full redress from whoever or whatever organisation caused the injury.”

It seems to me that somehow the Government has been persuaded that saving money on the legal system is almost childishly easy… when it really isn’t! This Bill might be being pushed through, but it certainly doesn’t appear to have been thought through.

Whether by accident or design, the insurance companies will be rubbing their hands with glee. Because those costly policies will still have to be bought, yet the risks of insurers having to pay out will be far, far less.

Whilst ordinary people with perfectly legitimate claims are going to be denied justice, simply because they can’t afford it.

And I thought we lived in a civilised society…