Response to the Green Paper By

Response to the Green Paper ‘Proposals for the Reform of Legal Aid in England and Wales’

The Forum of Complex Injury Solicitors

Executive Summary

FOCIS members act for seriously injured claimants with complex personal injury and clinical negligence claims, including group actions and our response concentrates on the limited numbers of such cases still within legal aid, in particular, clinical negligence and multi-party actions.

Our data shows that the present legal aid scheme for catastrophic injury victims of clinical negligence is remarkably effective:

· Within our sample of catastrophic injury cases generally concluded between January and May 2010, in 5 successful legally aided catastrophic clinical negligence cases our members recovered 10.9m in total damages for their clients (with a mean of £2.1m and a median of £1m) at a total gross cost of £721,826 (including counsel and disbursements). Almost all of such costs were paid by the losing party and not out of the Legal Aid Fund.

· Over the same period, 5 out of 8 of the firms who supplied data abandoned 7 potential catastrophic injury cases at a total gross cost to the Legal Aid Fund of £56,216 (including disbursements).

· On our data, clients have to find on average £30,526 to fund disbursements in catastrophic injury cases (in legal aid cases, such as clinical negligence these are presently funded by the Legal Aid scheme and the average for those cases was £35,685).

We believe that the combined impact of the withdrawal of Legal Aid for clinical negligence litigation and the proposed reforms of the costs recovery for CFA funded work in the field (non recoverability of Success Fees and ATE inter partes with recovery of the success fee against client capped at 25% of general damages and past loss) will leave seriously injured and vulnerable claimants with no, or very much reduced, access to justice. The proposed changes to the Funding Code would also effectively end legal aid for multi-party cases, even though that is not expressly consulted upon in the Green Paper.

It is particularly risky to remove legal aid from catastrophic injury clinical negligence victims and from multi-party cases at the same time as the government also proposes to gamble by replacing the CFA regime (that is to take the place of legal aid) with an untried and untested new regime which may not deliver access to justice.

1. Introduction

1.1 FOCIS[1] (Forum of Complex Injury Solicitors)

FOCIS members act for seriously injured claimants with complex personal injury and clinical negligence claims, including group actions. The objectives of FOCIS are to:-

1. Promote high standards of representation of claimant personal injury and medical negligence clients,

2. Share knowledge and information among members of the Forum,

3. Further better understanding in the wider community of issues which arise for those who suffer serious injury,

4. Use members' expertise to promote improvements to the legal process and to inform debate,

5. Develop fellowship among members.

See further www.focis.org.uk.

Membership of FOCIS is intended to be at the most senior level of the profession, currently standing at 29 members. The only formal requirement for membership of FOCIS is that members should have achieved a pre-eminence in their personal injury field. Four of the past presidents of APIL are members of FOCIS. Firms represented by FOCIS members include:

Anthony Gold

Atherton Godfrey

Boyes Turner

Digby Brown

Field Fisher Waterhouse

Freeth Cartwright

Girlings

Hodge Jones & Allen

Hugh James

Irwin Mitchell

Kester Cunningham John

Kingsley Napley

Leigh Day

Linder Myers

McCool Patterson Hemsi & Co

Osborne Morris & Morgan

Pannones

Parlett Kent

Potter Rees

Prince Evans

Russell-Cooke

Russell Jones & Walker

Stewarts Law

1.2 This response

This response focuses solely on the conduct of the serious injury claims and group actions handled by FOCIS members.

1.3 Our data

We attach data collected from 8 member firms of FOCIS regarding catastrophic injury cases concluded over the 5 month period between January and May 2010[2].

This exercise was carried out to support our response to the other Green Paper.

The numbers of legal aid cases are not statistically significant enough to enable reliable general conclusions to be drawn. However, as a random snapshot, it shows:

· In our sample of cases concluded by 8 member firms there were 5 successful legally aided catastrophic clinical negligence cases between January and May 2010, our members recovered 10.9m in total damages (a mean of £2.1m and a median of £1m) at a total gross cost of £721,826 (including counsel and disbursements). Almost all of such costs were paid by the losing party and not out of the Legal Aid Fund.

· Over the same period, 5 out of 8 of the firms abandoned 7 potential catastrophic injury cases at a total gross cost to the Legal Aid Fund of £56,216 (including disbursements).

· The average disbursements in winning cases were £35,685.

2. Reponses to Questions

Scope

Question 1: Do you agree with the proposals to retain the types of case and proceedings listed in paragraphs 4.37 to 4.144 of the consultation document within the scope of the civil and family legal aid scheme? Please give reasons.

Claims against public authorities [excluding clinical negligence]

We agree that it is essential that some cases remain within scope. However, we think that the bar is set too high. We suggest instead:

i) abuse of position of power; and/or

ii) breach of human rights; and/or

iii) negligent acts or omissions falling below the required standard of care required in accordance with the Bolam/Bolitho test.

We agree that a SLAS is particularly suitable for funding such cases.

Claims arising from allegations of abuse and sexual assault

We agree that these should remain with in scope. These are claims by very vulnerable individuals usually against powerful institutions. It would be difficult to fund many such cases through CFAs, particularly because of the high investigative costs and the difficulty in obtaining evidence.

Legal Help at inquests

This is sometimes required by our members to assist bereaved families. We agree it should remain in scope. We do not agree that publicly Legal Representation at inquests is not needed.

Legal Help for inquests is often granted where there are serious legal and factual issues involved in clinical negligence cases, serious accidents , military inquests or deaths in custody. In such cases the bereaved family will be faced with several legal teams often with QCs representing hospitals, doctors, the MOD , the Home Office, the Prison Service, police or prison officers. The form and factual content of the verdict can be of crucial importance. The Coroner is no position to help unrepresented parties faced with such complexity and submissions from other legal teams. A bereaved family will have difficulty maintaining their composure in incredibly emotive and emotional circumstances. They will not be in a position to familiarise themselves with the Human Rights law, the law of tort and Coroner’s rules. They will not be a position to frame and ask appropriate questions designed to elicit the appropriate evidence from witnesses not make appropriate submissions to the Coroner. Inquest are highly technical legal courts of law. Families will not be able to participate effectively in the inquest, especially if it is an “Article 2 ECHR” inquest . Without legal help they will be interested bystanders. Crucial evidence essential to their case will not emerge. We consider it essential that legal aid is retained for representation at such inquests.

Education

We consider that taking education appeals to the Upper Tribunal (the old Rule 53 jurisdiction), as it is proposed, is a serious mistake as these are appeals on points of law in an area where there is a complex statutory scheme and a substantial body of case law. It is very difficult for a non-lawyer to run such cases efficiently and effectively, if at all. This is often compounded by the fact that parents of children with Special Educational Needs (SEN) are disproportionately likely themselves to have SEN and come from a background of disadvantage.

The ability to run these cases will be largely taken away if public funding is removed across the board from education. This would be very bad news for poor parents and their children who are excluded from school or have severe SEN and who will have no legal assistance whatever the importance of the issue or the complexities of the law.

The consequences of taking Education wholesale out of scope will impact not only upon some of the most vulnerable in society but will also impact dramatically on the cost and efficiency of the Court and Tribunal Services. When one considers the relatively minor sums of money expended on the provision of these services (around £0.5 million) set against the impact upon the poor and vulnerable and upon the efficient operation of justice, we consider that this proposal is seriously misguided.

We consider that the MoJ has, in taking the whole of Education out of scope, failed to give appropriate weight to the degree of vulnerability of many beneficiaries of legal aid in this area and the fundamental right to education in play. The MoJ further appears to have failed to have distinguished, for example, between the types of cases ranging from those with SEN, exclusion cases, admissions and higher education. Applying the MoJ's own criteria, we consider that at least in respect of SEN and exclusion cases, all four of the MoJ's criteria for retaining an area in scope are met and that this proposal must be reconsidered.These claims should remain in scope. There is often an overlap between clinical negligence victims and education claims.

Environmental matters

We agree that legal aid should be retained.

Question 2: Do you agree with the proposal to make changes to court powers in ancillary relief cases to enable the Court to make interim lump sum orders against a party who has the means to fund the costs of representation for the other party? Please give reasons.

Not applicable. These are not areas of law in which FOCIS members generally specialise.

Question 3: Do you agree with the proposals to exclude the types of case and proceedings listed in paragraphs 4.148 to 4.245 from the scope of the civil and family legal aid scheme? Please give reasons.

We do not think that in the light of the proposed cuts that realistically personal injury generally can come back into scope at the present time. However, the fundamental changes proposed to CFAs (see the other government Green Paper) are likely to lead to significant numbers of complex and expensive claims no longer getting access to justice. In these circumstances, the government should legislate to bring them within the scope of legal aid otherwise such claimants will be effectively denied access to justice.

Clinical negligence

We do not agree with the proposals to exclude clinical negligence cases from the scope of legal aid. We do appreciate that with the current constraints on public funding some hard choices have to be made, but we think that in respect of clinical negligence claims (which are usually claims for injury caused by a state institution), the proposals go too far. Whilst in less serious claims it may be that either the litigation system will be reformed (whether through implementation of Redress or otherwise) and will lead t o different discussions on funding, and in moderately severe cases CFAs may be able to replace public funding in many cases, this is not so with the most serious cases.

We believe that the combined impact of the withdrawal of Legal Aid for clinical negligence litigation and the proposed reforms of the costs recovery for CFA funded work in the field (non recoverability of Success Fees and ATE inter partes with recovery of SF against Client capped at 25% of general damages) will leave seriously injured and vulnerable claimants with no, or very much reduced, Access to Justice. This is because if the civil litigation funding reforms are introduced as proposed, they will not provide a reasonable and viable alternative to public funding for this group of Claimants.

The reasons we oppose the proposals are as follows:-

• Claims involving very severe and life changing injury or death are ones which, by definition, are brought by or for people who are physically and emotionally vulnerable as a result of disability. They are also claims which are often brought in traumatising circumstances and are associated with, or made complex by, the age of the injured person (whether young or old).

• As a class of litigants, Claimant’s in severe injury cases are more likely to be disabled, frail, elderly or too young to bring proceedings on their own behalf. In many cases they will lack capacity as a consequence of the injuries they have sustained.

• Clinical negligence litigation is dependent upon expert opinion not just (as is the case in other areas of personal injury litigation) in relation to the nature and cause of injury, but also in relation to whether a breach of duty has occurred at all and the nature of that breach of duty. The inter-relationship between the medical issues relating to breach of duty and how they then impact upon medical causation are almost always exceptionally complex. As a result it is unlikely that a litigant would be able to represent him/herself effectively in a contested clinical negligence claim.