Government holds firm against Jackson changes

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By Legal Futures

15 September 2011

Djanogly: some clinical negligence cases will continue to receive legal aid

The government has fought off amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill that would have reversed the impact of the Jackson reforms on several areas of practice.

It has also rejected Lord Justice Jackson’s recent call to fund expert reports in clinical negligence cases with legal aid, rather than recoverable after-the-event (ATE) insurance as planned.

During the latest day of the bill’s committee stage, opposition MPs forced votes on removing from the reforms employers’ liability, industrial disease, professional negligence, insolvency and clinical negligence cases, as well as claims from overseas victims of British companies’ negligence. However, the Coalition majority stayed intact to defeat them.

On clinical negligence, justice minister Jonathan Djanogly said the exceptional funding scheme being introduced with the legal aid will ensure that some clinical negligence cases continue to receive legal aid.

“When considering whether exceptional funding should be granted, we will take account of the ability of clients to present their own case, the complexity of the matter, the importance of the issues at stake and all other relevant circumstances. As a result, the legal aid impact assessment estimates that we will continue to spend £6 million of the £16 million of legal aid that we currently spend on representation in clinical negligence cases.”

Mr Djanogly said the government had considered Lord Justice Jackson’s argument on making legal aid available for experts’ reports in clinical negligence cases, but considered recoverable ATE to be “a better way forward”.

He explained: “Apart from anything else, legal aid is available only to those who qualify financially, whereas the proposals allowing for recoverability of ATE insurance premiums in clinical negligence cases could provide access to justice for those outside legal aid financial eligibility who might none the less find it difficult to provide funding for potentially costly expert reports.”

On qualified one-way costs-shifting (QOCS), the minister said the government was still discussing whether to require the losing claimant to make a minimum payment to a successful defendant’s costs in order to prevent speculative claims. 

He added that a case has not yet been made to extend QOCS beyond personal injury, and it will examine how that works “before considering whether the scheme should be extended”. 

On mesothelioma cases – raised by Labour MP Kate Green – Mr Djanogly said the government recognised that they require an expedited procedure to ensure early resolution of claims. While a special practice direction has been introduced, the government is working on a scheme to reduce the time from diagnosis of the disease to settlement of claim without the need for litigation.

“Proposals to introduce the scheme, which will incorporate a fixed time scale and cost at each stage of the claim so that only the most complex cases reach litigation, are currently being considered.”

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