Access to Justice and Rule of Law

Legal Aid medical negligence specialist Jane McBennett comments the government’s proposed reforms to Legal Aid following the recent Green Paper Briefing.

I have always assumed that the rule of law existed in this country.  Even though it has become increasingly difficult for an individual to finance his remedy through the courts nevertheless I have always believed that anyone with a genuine case could access the legal expertise he needed to pursue his claim

I don’t anymore.

Even by government standards the MOJ paper on Legal Aid is astonishing in its ignorance and its mendacity.  Legal Aid is to be withdrawn for representation before Tribunals (?!)  Housing matters are coming out of scope.  Apparently the civil servants thought ‘quiet enjoyment’ referred to levels of noise. In criminal law the plan is to introduce financial penalties for certain outcomes which puts the lawyer’s interests into conflict with his client’s.

Legal Aid is withdrawn from private family law which means no more legal aid for dads who want to see their children or mums who need maintenance. At best the courts are going to be clogged up with people acting in person, at worst people will be driven to find their own solutions.  The MOJ claims to have evidence that litigants in person do not slow down the court process.  This is not true and the research actually included many instances where the unrepresented party took no part in the proceedings.  The author has distanced himself from this misuse of his research.

And so to the Civil Law.  Clinical Negligence is coming out of scope.  At paragraph 4.167 the Green Paper acknowledges that some cases (by which it means brain damaged babies) with high disbursement costs are not suitable for CFA but it has no alternative proposals to make.  I have just settled liability on a case which was about to be listed for trial where disbursements are £20,600.00.  The case started in 1994.  Initial obstetric reports were not too promising.  That case could not be run today.  The government and the LSC are rightly concerned about high experts fees even though there is an astonishing absence of data on the topic.  Their solution is to abolish the funding of these important cases altogether. 

The Law Society has described this Paper as a recipe for social disaster.

One thought from the briefing was that there might be scope for arguing that the Green Paper puts the government in breach of its obligations under the Disability Discrimination Act.  Certainly many victims of serious injury will by definition be disabled. 

It is suggested that a legally aided client should pay 25% of his general damages to the Fund.  This ties in with the Jackson proposal regarding the recoverability of success fees.  In the context of the level of general damages both proposals are equally unacceptable.

There is also a proposal, not well defined or understood, to force every solicitor to pay all his client money into a single national bank account with the interest earned going to the government.  This should make Friday completions great fun especially when the computer crashes.

The threshold for eligibility for legal aid will be lower than it is for income support.  Anyone who still qualifies will have to access the scheme via a government run telephone service and will be told whether or not he can have a face to face interview with a solicitor.  He won’t have many to choose from. The government proposes to cut the fees payable by 10%.  The Law Society calculates that every legal aid practitioner will make a loss.

But never mind the Advisory Service will refer any ineligible clients to a solicitor …… upon payment of a referral fee.

Taken together with the Jackson ‘reforms’ these proposals will prevent many victims from pursuing legitimate claims.  This is the intention.  Whether it is saving the nhs a miniscule amount of money, protecting the insurance industry from making payouts or deterring an employee from pursuing his ex employer through a Tribunal this government is about making sure its corporate friends and paymasters are protected.   These plans make a mockery of the concept of equality of arms before the law and access to justice.

– Jane McBennett
Associate Solicitor
Morrish Solicitors LLP and QualitySolicitors Morrish