Thursday, March 3, 2011


Report predicts ‘inevitable’ decline in quality of justice and an overloaded Court system for Clinical Negligence cases

Read the full report here

The report of the Judges’ Subcommittee states candidly that removal of Clinical Negligence from Scope “does not appear… justified” (para 37). 

It importantly notes the plight of the Claimant should these proposals come to fruition by reminding that the proposals will cause “potential injustice for a small group of highly vulnerable Claimants if the present proposal is implemented” (para 47).

The report’s conclusions, echoing those of AvMA’s consultation response, assert that the current proposals will compromise access to justice for those that need it most.  It emphasises that “victims of clinical negligence are almost always the vulnerable, from the unborn child to those who are physically or mentally ill or infirm and whose vulnerability is usually the reason for the medical intervention.” (para 38)

The most notable concern is the expected rise in the Litigant in Person triggered by the axing of Legal Aid.  With this means of funding no longer available, it is anticipated that solicitors will be unable to take on many of these clinical negligence cases, as firms will find themselves unable to fund the high disbursements associated with this complex area of law.

Paragraph 43 of the report remarks, “Given the hefty front loading of financial outlay to assemble the necessary expert evidence to support clinical negligence claims, as well as the high cost of legal expertise … to pursue litigation,it must be highly questionable whether there is any other ‘viable’ alternative to legal aid.”

With no such viable funding alternative, particularly bearing in mind the potential double-whammy consequences of the proposed Jackson CFA reforms, Claimants will be forced to represent themselves leading to a host of foreseeable problems, according to the Subcommittee. 

Paragraph 38 of the report explains the problem with this, “as a result of the many special features of clinical negligence litigation, a separate body of legal principles and practice has developed over the last fifty years or so, leading to what is now sophisticated and complex litigation, quite beyond the ability of anyone to pursue as a Litigant in Person.”

The report comments that the increase in the number of Litigants in Person will lead to, not only an ‘inevitable’ decline in quality of justice, but also, an overloading of the Court system. 

In fact, it is ostensible that the court system will slow down to such an extent that in the long-run, it could cost the government more money than the current system of Legal Aid, seemingly subverting the point of the proposals!

The report further justifies its concern about the potential cost that will be created if Legal Aid is abandoned, by highlighting the fact that, “Fewer than 1% of all solicitors are able to represent Claimants in clinical negligence litigation under the system of legal aid franchising.  Those that do are, consequently, responsible and highly specialist practitioners who are unlikely to waste public funds on hopeless claims.”(Para 40)

The report reiterates that currently there is no other viable or proposed alternative for funding claims which would currently fall in Scope.  The Subcommittee reminds that the NHS Redress Act 2006 is not yet in force and warns that in any event this Act will only serve to cater for low value claims.  It will not serve to fill the access to justice gap left by the removal of Legal Aid funding.

Read AvMA’s response to the Consultation
Please sign here if you wish to show your support for petition to the government urging them to reconsider proposed changes to both the current Legal Aid system and CFA.