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Pardoes condemn legal aid changes affecting a person's ability to claim for medical negligence

By Pardoes Solicitors LLP  |  Posted: September 13, 2012

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Top South West solicitors firm, Pardoes, has condemned the controversial Legal Aid Sentencing and Punishment of Offenders Bill, which is set to become law in April 2013. According to the firm, the changes will seriously affect a person's ability to pursue a claim for personal injuries suffered as a result of medical negligence.

The new legislation removes access to public funding for the majority of clinical negligence claims, therefore Pardoes is urging individuals who have suffered as a result of substandard medical treatment to come forward now, so that funding can be put in place and investigations  commenced before Legal Aid is withdrawn.

Justin Goodman, Partner and Head of Medical Negligence at Pardoes, says, "The potential consequences of withdrawing public funding for clinical negligence claims may stop an individual's ability to pursue a meritorious claim.  In my opinion, Legal Aid is a service which the Government owes to the public, as a matter of principle. Just as the Government aims to protect the public against difficult obstacles in life, such as unemployment, disease and old age, it should protect them when difficulties arise as a result of another person's actions. 

"Laws are  put in place for the protection of all  citizens, regardless of their personal circumstances. Therefore, in my opinion, it is the duty of the Government to make the legal system work for everybody. Our laws and freedoms are only as strong as the protection they provide to each individual, therefore, if we effectively withdraw a person's ability to act and obtain justice when they have suffered a wrong, then you are withdrawing the right to a remedy based on social class and means - this can never be acceptable."

Another effect of the new legislation is that successful claimants will not be entitled to have their legal costs paid for by their opponents, which means they will have to fund these themselves. This could mean the compensation that was intended to help the injured person after the accident, will instead have to be used to pay for the costs of pursuing their legal claim

Under the existing rules , successful claimants are entitled to recover an amount of money, which places them in a similar position  to what  they would have been in, had their medical treatment been of an appropriate standard.. Additionally, successful claimants are entitled to recover legal fees from their opponents. As they can recover their costs the systemensures that  the compensation element of any payment can be preserved to compensate the victim and help put them back into the position they would have been in but for another's negligence or breach of duty of care owed to them..

Adding weight to Goodman's arguments is Lord Justice Jackson, who was  tasked with carrying out an independent review of the rules governing the costs of civil litigation and to provide recommendations in order to promote access to justice at proportionate cost. Lord Justice Jackson said in his final report, "I do however stress the vital necessity of making no further cutbacks in Legal Aid availability or eligibility. The Legal Aid system plays a crucial role in promoting access to justice at proportionate costs in key areas. The statistics demonstrate that the overall cost of litigation on Legal Aid is substantially lower than the overall cost of litigation on Conditional Fee Agreements. Since, in respect of a vast wave of litigation, the costs of both sides are ultimately borne by the public, the maintenance of Legal Aid at no less than the present levels makes sound economic sense and is in the public interest."

The Legal Services Commission's own statistics show that the total cost of unsuccessful cases was £14.075million, whereas the total costs recovered in successful cases was £86.15million. Adopting Lord Justice Jackson's wider proposals, Goodman claims that  Lord Justice Jackson intended that Legal Aid  should be left alone, and in his Cambridge lecture in September 2011, stated that, "Of all the proposed cutbacks in Legal Aid, the removal of Legal Aid from clinical negligence is the most unfortunate."

Goodman adds, "The argument from the state is that cases should not be funded when they can be provided for by alternative means. The difficulty at present is that there are no effective alternative means available. The market may well adapt and third parties may provide costs and disbursement cover under insurance-type arrangements, or the market could further develop to allow contingency fee-type agreements. However, this is very uncertain at the moment and is of great concern to any person who has been the victim of medical negligence and who has suffered significant injuries as a result. In the circumstances, and in the face of such uncertainty, then I would urge any people who feel that they may have been the victim of a medical accident to come forward now when funding can be secured under the present system."

Pardoes has a leading clinical negligence department and is one of a handful of firms still currently able to offer Legal Aid to its clinical negligence clients. Pardoes also offers its clients the option of funding their claims under a Conditional Fee Agreement and will continue to do so once the new legislation is in place.

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