Victims of Medical Accidents Deprived of Access to Justice

In his speech to the Commons Kenneth Clarke portrayed a Legal Aid budget which was out of control, with annual spending of £914m.  The suggestion made was that the only beneficiaries of the present funding scheme were the “fat cat” lawyers.  Against this background, he sought to introduce planned cuts of £340m.

Jonathan Freedland in the Guardian newspaper on 16 November eloquently wrote of the true impact on access to justice.  He referred to “the idea that underpinned the establishment of Legal Aid after the war.  That a true welfare state should provide universal access not only to education and health but to justice”.  He pointed out that “equality before the law has to mean equal access to the law.”  In his view (and a view shared by many others), the planned cuts will undoubtedly have a serious impact on access to justice.

As part of this planned spending cut we are told that Legal Aid will be denied to those seeking to bring a claim for compensation for medical negligence.

Medical negligence, also known as clinical negligence, only amounts to a mere 1.85% of the entire Legal Aid budget.  The current scheme of public funding ensures that those of a low income, who are the victims of a medical mistake, can get access to justice.  Without such a scheme they will have no alternative but to try and find a solicitor who is willing to take their case on, on a “no win no fee basis”.  Inevitably this may be difficult.

The outcome of clinical negligence claims is notoriously difficult to predict.   At the time of initial instruction the lawyer will not have sight of any medical records, or access to expert medical opinion and will only have the client’s version of events.  Notwithstanding, he is required to assess the merits of any claim for compensation and decide whether or not to offer legal representation.  Even with formal claims screening procedures and risk assessment it remains difficult to accurately predict case outcome.

Many lawyers are reluctant to take clinical negligence cases on on a "no win, no fee" basis because they are adverse to risk, and perhaps quite reasonably, do not wish to gamble their fees dependent on a successful outcome, where the prospects of success are unclear.  As a consequence it is inevitable that only the most clear cut cases will be taken on.  In this way many whose lives have been destroyed by medical negligence will be denied recourse to justice.  There is no other profession or service industry where payment for services is conditional on success.

The conditional fee agreement scheme when introduced allowed lawyers who took on cases, (and thereby effectively gambled payment of their fees dependent on a successful outcome and also agreed to wait for payment), to charge a success fee to reflect such risks and the cost of delayed payment.  It was made clear that in assessing risks it was necessary not only to look at the risks or prospects of success in an individual case, but to consider the overall level of risk in relation to all client matters.  There would be winning and losing cases in equal measures.  Statistically, provided the success fee was adequate, the winning cases would pay for the losing cases where costs had to be written off.

Kenneth Clarke’s proposals rely upon a continuance of the current regime of “no win no fee” agreements, which suggests that he obviously has not read or considered in any detail Lord Jackson costs review and proposals for change to the current “no win no fee” scheme.

If the current plans and recommendations are implemented it is difficult to envisage precisely what help will be available to the many victims of medical injury who, through no fault of their own, may no longer be able to bring a claim for compensation.