APIL says reforms will deny seriously injured access to justice
Cutting legal aid while restricting conditional fee agreements (CFAs) will create a “perfect storm”, denying proper access to justice for some of the most seriously injured people, personal injury lawyers have warned.
The Association of Personal Injury Lawyers’ (APIL) response to the Ministry of Justice's consultations on legal aid and civil litigation funding and costs, which both close today, criticizes the government’s plans to implement the Jackson review.
APIL identifies two main problems with the government’s proposal to scrap CFAs as part of its wider review of civil litigation.
It warns that solicitors will be less able to offer a CFA to someone whose claim is complex, meritorious, and difficult to win. And it says those who are most seriously injured, and have no choice but to claim, are likely to lose money from their damages as they may be forced to pay a percentage of their compensation towards their legal costs.¬
APIL president Muiris Lyons said: “We do not support the primary recommendation on CFAs (conditional fee agreements) made by Lord Justice Jackson in his report and included in the Government consultation. It was a product of its time and ignores the new process for dealing with road traffic accident (RTA) claims.
“Some of the most seriously injured victims of negligence, such as babies born with brain damage because of medical errors, could be stopped from getting justice because they won’t have access to legal aid and the CFA regime won’t serve them properly either. It isn’t fair and it isn’t just.
“Furthermore, it isn’t even necessary. Last year there was a seismic shift with the introduction of the new RTA claims process which was designed to cut costs and improve efficiency in 75 per cent of all personal injury cases. And there are other new initiatives to help streamline the remaining 25% of cases which the Government is aware of, such as APIL’s proposals for clinical negligence claims.”
APIL has proposed a five-point plan to cut the cost of clinical negligence claims without restricting access to justice.
These five recommendations are:
• Introduce regulated, staged success fees for clinical negligence claims.
• Adapt the personal injury multi-track code voluntary pilot for higher value clinical negligence claims*.
• Introduce the industry-agreed revised draft of the pre-action protocol for the resolution of clinical disputes*.
• Develop a best practice guide with the NHSLA and other relevant parties for clinical negligence claims.
• Develop a streamlined process for straightforward, lower value clinical negligence claims.
Mr Lyons said: “There is a huge focus at the moment on the costs of bringing a claim, but very little on the rights of the injured person whose life may have been shattered by negligence. These are strong, fundamental ideas for reform which will cut costs without hitting the weakest in our society.
“The current drive to make injured people liable for some of their legal costs is unfair. How can it be fair and just for someone who is suffering because of another person’s negligence to have to pay towards putting things right?”
