Posted by Neil Rose, Editor, Legal Futures
For legal aid and personal injury lawyers it’s not so much the hope that kills (because there isn’t much of that) but the uncertainty. Both are gearing up for the potentially radical changes in their practice areas brought about by the government’s green papers on legal aid reform/cuts and on implementing much of the Jackson report respectively.
It is now a little over two weeks until the consultation period on both closes (on Valentine’s Day, no less) and lobbying activity is stepping up. Though there will, of course, be further opportunities to influence the outcome as the changes wend their way through the legislative process, this is the stage where the overall policy will be set.
For the purposes of this blog, I want to focus on the Jackson reforms and I should say at the outset that while I have some criticisms of the Jackson report, I am agnostic on the impact of the green paper. Someone has to try and stand back as there is little objectivity in the debate.
I was particularly struck by the case earlier this week in which a firm of solicitors provided a costs indemnity to their client in the event of not being able to find insurance. This could be an unpalatable taste of things to come, but it will certainly interest external funders out there looking at opportunities in the legal market.
Earlier this week I attended a breakfast roundtable event organised by legal expenses insurer DAS (a Legal Futures Associate) and Total Politics magazine to debate the Jackson green paper. It was a small and select group round the table, including justice minister Jonathan Djanogly, his Labour shadow Andy Slaughter and several other MPs.
The arguments are already well rehearsed, but there were some interesting pointers to draw out of the debate. First was that it didn’t take Mr Djanogly at all long to use the compensation culture as a justification for reform, to the dismay of the claimant representatives around the table. It is hard to avoid the conclusion that the government is playing to the crowd when it says on one hand that there isn’t a compensation culture (and even Lord Young said it in his report, albeit in a rather small voice), and then plays on the fear of one to press ahead with reform. The fears are real, so why not come out and try to dispel them instead? Or does that risk contempt from the newspapers?
A case in point is the school trips argument, which I was disappointed to hear Mr Djanogly trot out. Again it may well be true that teachers are worried, but isn’t the answer to reassure them that they need not be? Work done in 2009 by the Countryside Alliance Foundation, as part of a campaign to encourage teachers to make more use of the countryside, puts it into context: though 49% of teachers identified a “fear of litigation in the unlikely event of an accident” as a barrier, statistics obtained under the Freedom of Information Act from 138 local authorities revealed that of the countless school trips taken between 1998 and 2008, only 364 ended in legal action and just 156 in compensation of just over £400,000. It comes back to the difference between risk management and risk avoidance.
Second was that the issue which really caught the MPs’ attention was not the motorist who suffers a bit of whiplash from a rear-end shunt (particularly as the new claims process is generally thought to be settling down OK), but claims against the NHS. This should be no surprise and may actually help the claimant argument as the Jackson calculations don’t look so great in big-ticket clinical negligence cases. There was considerable sympathy with the idea that the NHS could do more to settle claims earlier, and discussion about medics saying sorry, which takes us back into the realms of the as-yet unimplemented but not forgotten 2006 NHS Redress Act.
Third was the comments of one Conservative MP who concluded that what he had heard amounted to special pleading from the legal profession and after-the-event insurers. There is no obvious solution to that, however hard the claimant lobby argues its case from the starting point of access to justice.
This is a battle now being fought firmly in the political arena. It would seem that the Access to Justice Action Group is right in its strategy of lobbying individual MPs – they will not really engage with the policy as a general issue, but may do if enough constituents are bending their ear.
This is the challenge those on both sides are now taking on. Maybe the only consolation for personal injury lawyers is that it could be worse – they could be civil legal aid lawyers.