The government yesterday offered a limited concession on the Legal Aid, Sentencing and Punishment of Offenders Bill as a coalition of 10 leading after-the-event (ATE) insurers accused the government of ignoring the industry during the formulation of its policy.
With the bill starting its crucial report stage in the House of Lords next week, the Ministry of Justice (MoJ) announced that legal aid will remain automatically available in cases in which negligent treatment or care taking place during pregnancy, or shortly after birth, has resulted in serious neurological injury to the child.
A spokesman said: “We agree that clinical negligence claims in obstetrics cases which result in severe disability must receive legal aid. We have therefore brought forward an amendment which will make this clear in law. A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue.”
However, the MoJ has confirmed to Legal Futures that the cases that have come back within scope will be subject to the proposed supplementary legal aid scheme, which will take 25% of all damages successfully claimed other than damages for future care and loss, and put them back into the legal aid fund.
A second concession saw the government change the definition of domestic violence for the purposes of legal aid eligibility.
Campaigners welcomed the first sign of movement by the government, but said it did not go far enough. A Law Society spokesman said: “We will study today’s concessions carefully, but they ought to be merely the first of many.”
Labour’s shadow justice secretary Sadiq Khan accused the government of being more interested in avoiding parliamentary defeats than “having a fair justice system to protect the most vulnerable”.
On clinical negligence, he said the proposed amendment does not appear to address concerns over the cost of expert reports. “It is our view that all incidents of clinical negligence should be covered by legal aid.”
Yesterday the Law Society, Association of Personal Injury Lawyers a
nd Motor Accident Solicitors Society put forward a compromise position on the Jackson reforms.
Meanwhile, the ATE insurers have criticised the lack of consultation with them over the plans to end the recoverability of ATE premiums, in a statement published today by a group of ATE insurers who says they have 60-80% of the ATE market between them and are unconnected to any liability insurer. It is signed by Amtrust Europe, ARAG, Box Legal, DAS, Elite, Financial & Legal, LAMP, Mount Grace, Temple, and Templeton.
Despite statements during the House of Lords committee stage that the government was in talks with ATE insurers, the signatories said they wanted “to place on the record the fact that the government has not consulted with or approached the independent providers with a view to discussing alternative and workable business models”.
They argued that replacing ATE insurance with qualified one-way costs-shifting would increase costs to the likes of the NHS Litigation Authority and local authorities, which will not be able to recover the costs of cases they win. They also predicted that the absence of a costs risk and the ATE filtering mechanism will increase the number of claims.
As well as eating into the damages of claimants who have to pay for ATE themselves, LASPO will “cause real practical problems for solicitors when advising their clients”, the group argued.
“Solicitors would not wish to forego their success fees but would wish to protect their clients and themselves against bad advice in the event a litigant loses his case. At the same time they would not want to risk a scenario where their client ended up with little or no damages after deductions.”
The group said: “The signatories believe that unless some form of ATE premium recoverability is preserved, access to justice will be significantly affected, both for personal injury and non-personal injury risks. ATE insurers have made proposals during the consultation process to assist the government but the proposals have been ignored.”
Finally, speaking at an IBC conference in London on the impact of his reforms, Lord Justice Jackson robustly defended his recommendation to increase damages by 10%. He said his reforms could “quite properly” be introduced without the 10% but he was persuaded by the “personal injuries lobby” to recommend it as a quid pro quo for losing recoverability.