Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Hamwee Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I am sure that the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Newton, will appreciate the importance of the concessions which the Liberal Democrats have negotiated—namely, that there should be a power in the Lord Chancellor to put areas of law back into scope because they may very well be right. It may be that these alterations will be more expensive than the Government think at this time. I very much welcome Amendment 68 which keeps birth injuries within the scope of legal aid. The reason for being concerned about cases claiming damages for personal injury arising out of medical negligence is that they currently receive legal aid as an exception to the previous Government’s removal of legal aid in personal injury cases.

Of course, four out of five claims fail or are withdrawn. Unlike a car accident or a factory accident, it is very difficult to appreciate negligence where negligence happens without the highly specialised and expensive investigation to which my noble friend Lord Faulks has referred. Although I have some experience of medical negligence cases, I defer to his very great experience and expertise. He raises the question, which I think is on everyone's mind: if you make an exception for birth injuries, what about the rest? It does not mean that claimants will be denied access to justice. If at the moment 80 per cent of clinical negligence cases are handled by conditional fee agreements, a greater proportion of these cases will simply be added to that route for funding.

In the course of the reforms that are set out in this Bill, it is essential that one-way cost shifting occurs in relation to cases that are brought under conditional fee agreements. That means that, win or lose, the defendant insurers will pay their own costs. The reason for the huge rise in insurance premiums, to which the noble and learned Lord, Lord Lloyd, referred, is the huge increase in the costs of the defendants. If four out of five claims fail, a claimant is very much without insurance; after-the-event insurance is very much at risk of being ruined by bringing an action. If, as the Government propose, one-way cost shifting is applied in this area, the unsuccessful claimant will have to carry only the costs of the disbursements. In medical negligence cases, as has been pointed out, such costs can be very high. It was for that reason that, in the Commons, the Government, recognising the problem, amended the Bill so that the cost of the premium of ensuring the disbursements, the costs of the medical expert reports, will be passed over to an unsuccessful defendant and will be absorbed, in the usual way, by the insurance company if the claim does not succeed. The insurance premium, instead of being at the dramatic size that it is at the moment, will be very much reduced and the risks under conditional fee agreements of unsuccessful claimants paying a great deal of money will be very much reduced.

The whole area of medical negligence needs to be looked at. Although we have been talking about high-cost cases, in fact the majority of these cases attract damages of less than £20,000. They are for negligent treatment for minor injuries perhaps. We are not always talking about catastrophic injuries in relation to medical negligence. Therefore, I have been arguing for an NHS redress scheme, such as that which was introduced in Wales within the past two years. The Government have said that they regard that scheme, which deals with cases up to a value of £20,000, as a pilot and, depending on how the scheme goes, will consider introducing it into England.

But the power already exists. The previous Government passed the NHS Redress Act in 2006 and Wales grasped the opportunity, as did Scotland. They grasped the opportunity of introducing a scheme with fixed fees for lawyers and fixed fees for expert reports to satisfy the problem that exists with low-value medical negligence cases. If we could progress that a little further in England, it would do a great deal to relieve the concerns that have been expressed here today.

I hope that my noble and learned friend Lord Wallace will be able to make some favourable noises in relation to an NHS redress scheme. The Opposition could not object: they brought in the Act in 2006, though they never thought that the people of England deserved it being implemented. On the other hand, the people of Wales took a different view. All reports so far on how its scheme is going suggest that it works well, reduces legal fees and provides solutions for people who have been injured. I hope that the Minister will tell us that something along those lines will be considered in this very difficult area.

[Baroness Hamwee]

My Lords, perhaps I may ask a short supplementary question following the queries made by my noble friend Lord Carlile about Clause 9. I was intending to raise it on a later amendment but will do so now if my noble friend is going to deal with it.

The natural meaning of “exceptional cases” suggests to me something very unusual about either the claim or the claimant. I am troubled that claimants might fall foul by virtue of being part of a cohort. Can the Minister help me with what is meant by “enforceable EU rights”, which, along with convention rights, bring one within the exceptional determination provision?

[Lord Beecham]

My Lords, before I address the amendments, I must correct something that I said in Committee. I unfortunately misrepresented the noble Lord, Lord Wigley, as saying that 10 per cent of National Health Service patients suffered clinical negligence. I rather conflated different figures. He referred to the fact that a million of what are described in somewhat Orwellian language as “adverse incidents” take place in the health service, of which only 10,000 give rise to claims, which represents only 1 per cent of those adverse incidents.

The noble Lord, Lord McNally, has in the previous debate, and indeed in virtually every debate, prayed in aid as a rationale for government policy the question of costs. It is not unreasonable that costs and public expenditure should form part of these discussions, but, as we have heard today from the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Wigley, and others, the argument in this case runs the other way. What the Government are proposing would cost the Exchequer, rather than the converse. In any case, we are speaking only of some £10 million, which would have been the saving under the Government’s original policy. I welcome so far as it goes the amendment that the Government are proposing. As they are now going some way—though not far enough—towards meeting the case for extending legal aid, that amount of saving would be reduced in any event.

However, it is not just those of us who support the amendments of the noble and learned Lord and of the noble Baronesses, Lady Grey-Thompson and Lady Eaton, who take the point about the cost and the way in which the system would work. No less an authority than the National Health Service Litigation Authority has expressed its considerable reservations about the Government’s approach, saying:

“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements (CFAs) in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.

That view is at odds with that of the noble Lord, Lord Thomas. Given that the litigation authority is at the receiving end of these claims, I am inclined to give rather more weight to its views.