Retain legal aid for clinical negligence, urges Jackson – with swipe at the Law Society

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By Legal Futures

6 September 2011

Jackson: "inauspicious" for Law Society to combine legal aid and civil costs campaigns

Lord Justice Jackson yesterday called on the government not to withdraw legal aid from clinical negligence work.

He also criticised the Law Society for conducting a single campaign against the legal aid cuts and his reforms of civil costs “as if they are a composite package”.

Addressing the Cambridge University law faculty, the judge emphasised that the cuts to legal aid are contrary to his recommendations and said that its removal from clinical negligence is “the most unfortunate” of all the proposals.

He cited the judiciary’s response to the legal aid green paper, which argued that removing clinical negligence from the scope of legal aid “does not appear to us to be justified”. This was because of the “many special features” of clinical negligence litigation which would make it “quite beyond the ability” of a litigant in person.

By contrast Sir Rupert strongly backed the civil costs reforms in the Legal Aid, Sentencing and Punishment of Offenders Bill, which are based on his recommendations.

However, he said the government concession on retaining recoverability for after-the-event (ATE) insurance premiums to cover expert reports in clinical negligence – while “perfectly sensible” from a policy point of view” – will be “extremely expensive and inefficient” to implement.

A better approach would be either to retain legal aid for clinical negligence in full, or at least just to pay for expert reports, he said, leading to a “substantial saving of public money” for a variety of reasons, including legal aid means testing and cutting out ATE insurers’ profits. The Legal Services Commission estimated that it would cost £6m to retain legal aid for expert reports.

On the Law Society, the judge said running a single campaign against both the legal aid and costs reforms “has created certain difficulties”. While the legal aid campaign “clearly rests of public interest grounds”, he said this is not the case with his reforms, opposition to which “is not based on the public interest at all… [but] is in the interests of those groups who are making disproportionate profits out of the current arrangements”.

He said: “The Law Society may wish to consider whether it is representing (a) the sectional interest of viewpoint of CFA lawyers or (b) the wider public interest. Both roles are perfectly legitimate and I would not presume to criticise the Law Society, whichever decision it makes. I would, however, respectfully suggest that it may be inauspicious to combine both roles in a single campaign.”

While welcoming Lord Justice Jackson’s comments about the legal aid cuts, Law Society chief executive Des Hudson responded: “The society’s opposition to the Jackson proposals are not driven by the interests of a group of lawyers but about claimants who have suffered injury and, under these proposals, may lose the ability to gain compensation.

“Our position in this respect is clear. The availability of legal aid and the Jackson proposals are inextricably linked.”

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