Access to justice for people who are injured through 'clinical negligence' will be seriously undermined if the 'Legal Aid Sentencing and Punishment of Offenders Bill' is passed through Parliament. If the Bill is passed, it will mean that legal aid will no longer be available for clinical negligence.

Thousands of professionals from the legal world made representations to the Government's  green paper, that victims of clinical negligence are often the most  physically and financially vulnerable due to the injuries inflicted on them through no fault of their own. They argued that such claims should remain in scope or at least retain legal aid to cover the cost of expert's fees.

The Justice Secretary appears to have ignored the responses and have formed their own view that claimants do not have serious cases, do not require legal aid, and to provide them with legal aid will not provide value for money to the taxpayer.

There have been angry reactions to the proposals from all quarters including the Law Society, APIL (Association of Personal Injury Lawyers) and senior members of the judiciary.

It may be that the Ministry of Justice (MOJ) envisaged that by introducing one way cost shifting (where the claimant does not pay the defendants costs if the claimant loses, in conjunction with an insurance product which just covers claimants experts fees) will afford financial protection for claimants. The reality however appears to be different.  A spokesman for a leading ATE (After The Event) insurer has commented that 'the MOJ were told that if one way cost shifting was implemented this would be a disincentive to Insurers to produce a policy which just covered disbursements because there would be no financial interest for them to do so'. The Minister cannot therefore assume that there will be insurance available to cover experts fees or that solicitors will pay for the fees. 

It now remains to be seen as to whether Parliament will continue to ignore the force of opposition, and storm ahead with the proposed cuts without the assurance that insurance products are available to claimants. To do so, would undoubtedly leave the Government vulnerable to the involvement of the European Court.

The Bill will get its first reading in Parliament on 29th June 2011. Please revisit our website for our future comments on the outcome.

Please click on the Clinical Negligence link, if you require any assistance with a claim or are unsure over any issues.