Clinical cop-out in new Bill?

The House of Commons Health Committee has criticised Ministry of Justice proposals to end the recoverability of success fees in clinical negligence cases.

Under the Legal Aid, Sentencing and Punishment of Offenders Bill, which seeks to implement the majority of Lord Justice Jackson’s review of civil litigation, after-the-event legal expenses insurance would continue to be recoverable in clinical negligence cases, due to the high cost of initial disbursements. However, success fees would not.

In a report this week, the committee, chaired by former health secretary Stephen Dorrell MP, warned this could “undermine access to justice” and erode compensation for “the most seriously injured or disabled claimants”.

The committee noted that Jackson LJ stated in his review that it was “vital” for legal aid to remain available in clinical negligence cases. The Bill removes this, saving about £17m.

The committee highlighted the finding of Action against Medical Accidents that at least an equivalent amount would be saved for the NHS if legal aid were retained, rather than cases being brought on a “no win, no fee” basis.

It took aim at the 300 claims management companies, also known as “claims farmers”, in the UK, which it said had caused the number of claims against the NHS to rise by 10% in each of the last two years. It said they sold claims to the highest bidding solicitor not the most appropriate, encouraged people to go straight to litigation rather than seek alternative means of redress, and often tempted clients into signing by offering immediate cash payments.

However, the committee welcomed proposals to develop a rapid resolution process for low-value NHS claims, which would speed up admissions of liability and reduce costs for the NHS. It called on the government to release more details of this scheme.

Peter Lodder QC, chairman of the Bar, who has written to MPs expressing concern about the Bill, said: “A cut-price, DIY justice system, which will actually end up costing more money, rather than saving it, is in no one’s interests.”

Last week, legal expenses insurer, Elite Insurance announced it was leaving the Association of British Insurers in protest at the ABI’s support for the Jackson reforms, particularly the end of recoverability of premiums.