Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, at this late hour, I, too, will confine myself to a single, rather narrow point on legal aid. It concerns a particular aspect of claims for clinical negligence; namely, the cost of obtaining expert reports.

In almost all cases, expert reports are a prerequisite if a claim is to succeed. The cost of such reports is usually covered by after-the-event insurance in the manner described by the noble and learned Lord, Lord Woolf, and, before him, by the noble Lord, Lord Faulks. Since 2000, the premium paid by the plaintiff to obtain such insurance has been recoverable from the defendants, usually the National Health Service, whether the plaintiff wins or loses.

It was the Government’s original intention that premiums payable for ATE insurance should cease to be recoverable, along with success fees and referral fees. However, the Government listened to certain concerns, particularly about the effect that that would have on funding expert reports. The point was put very clearly by the Minister in the other place on 2 November. He said:

“Such reports, which can be expensive, are often necessary in establishing whether there is a case for commencing proceedings, which raises particular issues if recoverability of ATE insurance is abolished. In responding to these concerns, clause 43 provides, by way of exception, for the recoverability of premiums in respect of ATE insurance taken out to cover the cost of expert reports in clinical negligence cases”.—[Official Report, Commons, 2/11/11; col. 1027.]

As a consequence, the Government introduced Clause 43 as we now find it.

My concern is not about the Government’s objective, quite the contrary—I agree that the cost of obtaining reports should not in any event fall on the plaintiff. However, I would respectfully suggest that there is a much better way of achieving that desirable objective, rather than the rather complex provisions that one finds in Clause 43. I hasten before anything else to add that this is not my idea, but an idea of Lord Justice Jackson. I echo the tribute paid by the noble Lord, Lord Hunt, to what Lord Justice Jackson achieved, by my calculation, nearly five years ago. It was an astonishing achievement in less than a year. In that respect, he has really done the state some service. His suggestion is that if clinical negligence generally is not to be covered by legal aid, it should at least, by way of exception, cover the case of expert reports, since expert reports are, as the Minister in the other place has already accepted, an exceptional case.

Why then is legal aid a better way of achieving that desirable result than what is contained in Clause 43? The reasons are set in Lord Justice Jackson’s lecture, to which reference has already been made by the noble and learned Lord, Lord Woolf, and others. I pick out only two of his reasons. The first is cost, a point touched on by the noble Lord, Lord Gold, quite recently. At the moment, after-the-event insurance premiums are at an all-time high. The Law Society says that the cost of ATE insurance is “currently prohibitive”. They are a major element in the cost of clinical negligence cases, which currently falls on the taxpayer and will continue to fall on the taxpayer if Clause 43 stands.

Secondly, Clause 43 is inefficient. The cost of obtaining expert reports will fall on the state—on the taxpayer—however wealthy the plaintiff. The great advantage of legal aid in this context is that it is selective and only available to those who qualify. That, surely, is as it should be.

The cost of making legal aid available for obtaining reports would be, as I understand it, a mere £6 million per year, but the savings to the public purse, by amending Clause 43, as I shall suggest in due course, are far greater than that.

Whatever view the House may eventually take about legal aid for clinical negligence generally, I hope that both sides of the House will accept that it should certainly be available in the case of expert reports, in accordance with Lord Justice Jackson’s views.