Legal Aid, Sentencing and Punishment of Offenders Bill

Viscount Simon Excerpts

Monday 21st November 2011 Lords Chamber

[Viscount Simon]

My Lords, as has already been mentioned by the noble Lord, Lord Hunt of Wirral, in February of this year three senior cost judges made a report about the proposals of the Ministry of Justice for reform of civil litigation and costs in England and Wales. I suspect that the Law Society is not alone in disagreeing with various parts of the report. It is thought that the problems which affect the conditional fee regime will not be resolved by the abolition of the recoverability of success fees by paying parties, as the Ministry of Justice proposes. On the contrary, shifting the burden of success fees away from tortfeasors and on to claimants will not only cause injustice, but cast aside the many commendable steps that have already been taken by interested parties over the past decade to iron out the malign aspects of the conditional fee arrangement regime, which is widely recognised as having been a blight on the English and Welsh legal system.

Under the conditional fee agreements it is often said that claimants have no interest in the costs of their claim. Quite apart from the fact that claimants will not want the stress of a long and more expensive case if they can possibly help it, they will in fact have a deep interest in matters affecting their well-being, especially if they have suffered an injury. The claimant solicitor will also have a strong interest in keeping costs down because if they lose they will have to absorb them. In some senses the clue is in the well known phrase “no-win no-fee”. However, while the recoverability regime can be described as anything but having teething problems, the reality is that where improvements need to be made, the majority of difficulties have been resolved and those remaining can be dealt with without dismantling the existing regime. I find it interesting that the Law Society thinks that the changes contained in Part 2 of the Bill will cause years of satellite litigation as people argue about the new rules.

I now turn to medical accidents and the impact on injured patients and their families who are not able to challenge the NHS with the help of legal representation. Practically every clinical negligence claim represents a failure in patient safety, even if the case successfully results in negligence liability and causation is proved and compensation paid. The vast majority of cases are robustly defended by the NHS simply because there is no understanding of serious errors made which have led to avoidable harm to patients. It is often only because the case has been investigated independently that it becomes clear that errors have been made, resulting in some learning taking place to help prevent the same errors being repeated. The reforms under this Bill, particularly taking clinical negligence out of the scope of legal aid, will prevent vast numbers of people ever having their case properly investigated, thereby denying the NHS vital lessons for improving patient safety. This is due to the very high costs encountered by medical experts. If there is no legal aid, solicitors will be able to cherry pick the more clear-cut cases. Because the vast majority of clinical negligence victims are harmed at the hands of a state body—the NHS—there is a strong moral argument that the state should ensure that these people have access to justice.

There are many more areas of concern which I am sure will be raised by other noble Lords but I would like to mention citizens advice bureaux where, under the Legal Help scheme, thousands of people are assisted with their varied problems. According to the Government, this kind of assistance should not be within the scope of legal aid and these people should be able to represent themselves. The proposed changes will prohibit eligibility for assistance and restrict people’s access to justice. It will also have a serious financial impact on CABs and other non-profit agencies. We are told frequently that the Government listen. However, Citizens Advice has told me that 93 per cent of those who responded to the consultation did not support the proposed changes and raised serious concerns about them. These responses have not received the scrutiny they deserve and should be looked at in much more detail. The Government may well listen but they do not seem to take into account the concerns of so many people.

There are many aspects of this Bill which will cause all kinds of difficulties and I suspect that there will be numerous amendments to address them.