Tebbit and Mackay join LASPO fight as ATE working group reports to Ministry of Justice

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By Legal Futures

13 January 2012

Lords: big-hitters lay amendments

Former cabinet minister Lord Tebbit and one-time Lord Chancellor Lord Mackay have thrown their weight behind amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill.

Lord Tebbit has been joined by two fellow Conservative peers and a former chief executive of the NHS in calling for the government to retain legal aid for children making clinical negligence claims.

Together with one-time Tory cabinet minister, Lord Newton of Braintree, Baroness Eaton and crossbencher Lord Crisp, he is sponsoring an amendment to the bill that was published yesterday.

At the same time as being chief executive of the NHS (from 2000 to 2006), Lord Crisp was also permanent secretary at the Department for Health.

Lord Tebbit told the Guardian last month that while he supported the broad thrust of the bill, he was concerned it was going too far by excluding clinical negligence claims by children from the scope of legal aid.

Lord Mackay, who was Lord Chancellor from 1987 to 1997, has co-sponsored a cross-party amendment that aims to retain the recoverability of success fees in insolvency and bankruptcy cases. Labour frontbencher Lord Bach and leading Liberal Democrat lawyer Lord Thomas have also signed it.

There has been a long-running issue raised by HM Revenue & Customs and the Insolvency Service over ending recoverability in insolvency proceedings and particularly actions br

ought against director of insolvent companies.

Meanwhile, a working group investigating the viability of after-the-event (ATE) insurance for initial expert reports in clinical negligence cases has provided its first findings to the Ministry of Justice (MoJ), it has emerged.

The bill makes ATE for such reports the one exception to the end of recoverability after concerns about their cost were raised during the green paper consultation.

In a statement, the MoJ said: “The government’s preference would be for a solution in the way expert reports are commissioned so that in most cases, ATE insurance was not necessary. We are therefore working with the NHS Litigation Authority and other defendants to improve the way that expert reports are commissioned, including encouraging more joint reports where possible.

“The Association of Personal Injury Lawyers (APIL) has assisted us by establishing a working group to look at the commissioning of expert reports and the use of ATE insurance to fund such reports. This group consists of both claimant and defendant representatives, as well as ATE brokers and providers.

“We have asked the group to come up with realistic options and advise the MoJ of the pros and cons of each. The first report was sent to the MoJ in December 2011 and officials are now considering how the work might be taken forward.”

An APIL spokesman explained that different ATE insurers have given different views on whether there will be a market for ATE insurance if the bill is fully implemented.

“Another concern is that, if expert reports were jointly commissioned, lawyers would be less able to test the expert’s opinion as fully, which may in turn have an impact on the level of confidence a claimant or defendant lawyer will have in that opinion.”

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One Response to “Tebbit and Mackay join LASPO fight as ATE working group reports to Ministry of Justice”

  1. How about this for clin neg.
    Claimant sets out case to NHSLA and gives authority for access to all health records and data.
    NHSLA instruct expert from MoJ list of Independent Adjudicators.
    IA reports to NHSLA and claimant at same time.
    If necessary IA mediates on issues of negligence.
    If agreement reached case issued in court and judge acts as arbitrator as to compensation if parties cannot settle case. Court to approve settlements for children.
    NHSLA pay costs based on sliding scale.

  2. Michael Robinson on January 13th, 2012 at 9:52 am

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