BIG CHANGES IN LEGAL AID AND NO WIN NO FEE COMING UP IN APRIL 2013

The law on paying legal fees has changed recently, and although it is not coming into effect until April 2013, in certain cases the changes may have an effect now.

At present, most people who have a claim for injury against a hospital trust or other healthcare provider will either receive Legal Aid to cover their legal costs, or their solicitor will act for them on a Conditional Fee Agreement (this is usually called No Win No Fee).

As a rule, clients with the benefit of Legal Aid or No Win No Fee arrangements with their solicitors pay no fees if a case is unsuccessful, if they win their case the costs are met by the losing defendant.

Although Legal Aid and No Win No Fee agreements are not being abolished, the situation is going to change dramatically on 1^st April 2013 because of certain provisions in an act of Parliament called the Legal Aid, Sentencing and Punishment of Offenders Act.

Legal Aid

At the moment any person with a clinical negligence claim may be eligible for Legal Aid provided 1) Their chances of success are reasonable; and 2) Their income and capital are below a certain level. 

From April 2013 only those who have been injured during pregnancy, labour, or the first eight weeks of life will be eligible for Legal Aid.  This is regardless of whether in other respects they have a strong case and/or a very low income.

In addition, there will be a Legal Aid Levy taken from the damages of people with successful claims by the government’s Legal Aid Agency (the organisation set up to administer Legal Aid after April 2013).  The deduction will be 25% of the general damages awarded, that is, the part of your damages that compensates for the pain and suffering endured as a result of the negligence and any past losses (expenses) claimed.

In many cases this could be a very significant sum indeed.

Conditional Fee Agreements (No Win No Fee)

Because of the reduction in availability of Legal Aid many more people will be relying on their solicitors offering a No Win No Fee agreement.  Solicitors will continue to offer this facility to their clients, where if the case is not successful they will pay no fees. 

However, in successful cases there will be changes.

Presently, the costs that claimants recover from defendants include a solicitor’s success fee.  The success fee is calculated as a percentage of the solicitor’s basic fee.  It is used to offset the risk of the solicitor not being paid anything should the claimant lose the case.  It is only payable if the claimant wins the case and will usually be paid by the losing opponent.

However, from April 2013 successful claimants may be deprived of up to 25% of their general damages in order to pay solicitors' success fees, as these will no longer be recoverable from Defendants.

What can you do now?

It is very important that if, before April 2013, you think you may have a claim against a hospital trust or other healthcare provider, you seek legal advice as soon as possible. 

Any No Win No Fee agreement entered into or Legal Aid granted before April 2013 will not be subject to the new rules. 

By instructing a solicitor and establishing the method of funding before April 2013, you may be saving yourself a significant deduction from damages if your case is successful.

To obtain specialist legal advice from one of AvMA’s accredited solicitors you may either telephone our helpline on 0845 123 2352 or click here and select a solicitor from our Find a Solicitor section.

Don't be fooled by the promise of exceptional funding

In response to the countless meetings and volumes of correspondence Avma and our members have had with our MPs, ministers, and civil servants at the MOJ over the removal of clinical negligence from the scope of legal aid we have all had a similar response...

'Solicitors will offer clients CFAs and if not £6m will be available via exceptional funding.'

But by definition, experience, and by linking together information contained hidden deep within three very long documents we say this cannot be the answer

Firstly. How can anything that is exceptional provide for the funding of a whole category


Secondly exceptional funding has been around for a long time in theory, for exceptional personal injury claims, and inquests. The experience of our members is almost invariable, they apply but their clients do not get it.

Thirdly and perhaps most importantly is if you join up the dots and add up the figures the outcome for claimants is not good. They could (and in the case of brain damaged children would) end up worse of than with any other sort of funding because the government would take 25% of their damages to pay back to a supplementary legal aid scheme.

As we say you have to look hard and make connections. But in the green paper it is stated £6m is put aside for exceptional funding. In the consultation published in Nov 2010 a table shows £6m could be available from claimants damages if a SLAS were operated and in its response to the consultation pub June 21 2011 at para 33 page 250 the government sets out the proposal that any exceptional funding scheme for clin neg would be funded by a SLAS based on a 25% levy on all damages except future care and loss

Simples - keep legal aid in scope as it presently is or the most seriously injured will pay

PLAN TO CUT LEGAL AID FOR CLINICAL NEGLIGENCE WOULD COST THE TAXPAYER MILLIONS, INDEPENDENT RESEARCH FINDS

Knock on costs estimated at THREE times predicted government saving

Cutting legal aid for those who have suffered clinical negligence would cost the Government (i.e. the taxpayer), millions of pounds more that it would save Ken Clarke’s Ministry of Justice (MoJ), confirms independent research by Kings College published today by the Law Society.

Unintended Consequences: the cost of the Government’s Legal Aid Reforms (“the Report”) vindicates what campaigners Action against Medical Accidents (AvMA – the charity for patient safety and justice) have been saying since the proposal, one of a host of controversial cuts contained in the Legal Aid Sentencing and Punishment of Offenders Bill (LASPO), was announced.

The Report shows that the cuts proposed in LASPO will give rise to unbudgeted costs of at least £139M, undermining Ken Clarke’s contribution to the Government’s deficit reduction target.

The specific chapter on Clinical Negligence can be found at pages 65-71.  It shows that knock-on costs for Clinical Negligence alone amount to THREE times the predicted government saving.  A proposed budget saving of £10.5m set against knock-on costs of around £28.5m with a net loss of around £18m. This, will, in most part, be shouldered by the NHS.

Unsurprisingly the NHS Litigation Authority itself has already registered opposition to these cuts stating that legal aid is by far the fairest and most economical way to fund these claims; and that Lord Justice Jackson, architect of the Government’s controversial reforms to Conditional Fee Agreements (CFAs or “no win, no fee” agreements), predicated his proposals on there being a system of legal aid still in place. He has said that clinical negligence in particular should remain in scope for legal aid.

Now, the Government faces a rebellion and possible defeat in the Lords unless it drops its plan. Influential Liberal Democrat peers Lord Carlile and Lord Thomas are championing an amendment to keep clinical negligence in scope for legal aid. The Bill is due to be debated on January 10^th.

Peter Walsh, Chief Executive of AvMA said:

“Cutting legal aid for clinical negligence is just bonkers whichever way you look at it. Either the Government is being deeply cynical and people injured by clinical negligence simply won’t be able to access justice, or the taxpayer and the NHS will be hit hard at a time it can least afford it. As the Report states, ‘there is certainly no economic justification for these changes’ (para 9.4.5)”.

Walsh continues, “The Report’s findings also validate our decision to launch Judicial Review proceedings in which we contend that the MOJs consultation, culminating in the Response of 21 June 2011, was manifestly flawed.”

One of the Report’s key conclusions highlights ‘the lack of robust data on numerous elements of the Civil justice system’(9.4.5), echoing AvMA’s grave concerns about the evidence the government used or had access to when supplying reasons for its Response. As a result of its findings, the Report importantly insists that ‘the government addresses the Justice Select Committee’s request for a full and proper appraisal of the knock-on costs before these changes are enacted’. (9.4.7)

Walsh concludes, “It is evident and shown in this Report, that the government has failed to prove two of its key assumptions supporting its proposals, these being, that the new regime will result in significant savings or that the potential savings alone justify the proposed changes.”

AvMA point out that there are even further unintended consequences and costs of cutting legal aid for clinical negligence. The patient safety experts are concerned that if people are unable to pursue claims then errors will not come to light and opportunities for improving patient safety missed. This would result in immeasurable human cost as well as huge costs for the NHS. Further, the clinical negligence legal market would be thrown open to non specialist solicitors and claims farmers, with none of the quality control afforded by publicly funded legal aid.