Pressure on the government over its plans to scrap Legal Aid for medical negligence cases will be ramped up today when the leading medical charity, Action against Medical Accidents (AvMA) goes to Court to seek judicial review of the Justice Department’s proposals. 

The government has consistently refused to take proper account of the overwhelming opposition to its plans.  As recently reported in this blog, the opposition is not confined to Claimant groups.  The NHS Litigation Authority, which effectively represents the government in claims against the NHS, has openly criticised the plans which it says will deny access to justice to deserving Claimants and will actually drive up the costs of claims, thereby increasing the financial burden on the taxpayer.  These criticisms are endorsed by Lord Jackson, the Law Lord charged with a comprehensive review of litigation funding.

AvMA will submit to the Court that the government’s plans are ‘completely irrational’.  It maintains that some of the most deserving Claimants will be denied access to justice. It rejects the government’s contention that these Claimants will be able to access justice through Conditional Fee Agreements (‘no win no fee’), as the particular risks associated with medical negligence work and the prospect of not being able to recover success fees will make it uneconomic for Claimants’ solicitors to take on the difficult cases where the risk of losing is significant. 

The clinical negligence Legal Aid bill is £17million, a tiny proportion of the total Legal Aid budget of £2.2billion.  It should also be borne in mind that in successful cases, the government is able to recover, through the Compensation Recovery Unit, millions of pounds of benefits which have been paid to Claimants as a result of their injuries.  The net cost of the Legal Aid scheme is therefore small and the consensus is that its withdrawal will cost the government more.

AvMA’s challenge to the government’s proposals should be applauded.  They appear to be more about the government being seen to be doing something about the mythical compensation culture than about delivering real savings and they will do untold damage to the our legal system’s reputation for allowing the most vulnerable in society access to justice.

Robert Bell

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