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Response to the Green Paper ‘Proposals for the Reform of Legal Aid in England and Wales’ by The Forum of Complex Injury Solicitors Executive Summary FOCIS members act for seriously injured claimants with complex personal injury and clinical negligence claims, including group actions and our response concentrates on the limited numbers of such cases still within legal aid, in particular, clinical negligence and multi-party actions. Our data shows that the present legal aid scheme for catastrophic injury victims of clinical negligence is remarkably effective: Within our sample of catastrophic injury cases generally concluded between January and May 2010, in 5 successful legally aided catastrophic clinical negligence cases our members recovered 10.9m in total damages for their clients (with a mean of £2.1m and a median of £1m) at a total gross cost of £721,826 (including counsel and disbursements). Almost all of such costs were paid by the losing party and not out of the Legal Aid Fund. Over the same period, 5 out of 8 of the firms who supplied data abandoned 7 potential catastrophic injury cases at a total gross cost to the Legal Aid Fund of £56,216 (including disbursements). On our data, clients have to find on average £30,526 to fund disbursements in catastrophic injury cases (in legal aid cases, such as clinical negligence these are presently funded by the Legal Aid scheme and the average for those cases was £35,685). We do not agree with the proposals to exclude clinical negligence cases from the scope of legal aid. We do appreciate that with the current constraints on public funding some hard choices have to be made, but we think that in respect of clinical negligence claims (which are usually claims for injury caused by a state institution), the proposals go too far. We believe that the combined impact of the withdrawal of Legal Aid for clinical negligence litigation and the proposed reforms of the costs recovery for CFA funded work in the field (non recoverability of Success Fees and ATE inter partes with recovery of the success fee against client capped at 25% of general damages and past loss) will leave seriously injured and vulnerable claimants with no, or very much reduced, access to justice. The proposed changes to the Funding Code would also effectively end legal aid for multi-party cases, even though that is not expressly consulted upon in the Green Paper. It is particularly risky to remove legal aid from catastrophic injury clinical negligence victims and from multi- party cases at the same time as the government also proposes to gamble by replacing the CFA regime (that is to take the place of legal aid) with an untried and untested new regime which may not deliver access to justice. 1. Introduction 1.1 FOCIS1 (Forum of Complex Injury Solicitors) FOCIS members act for seriously injured claimants with complex personal injury and clinical negligence claims, including group actions. The objectives of FOCIS are to:- 1. Promote high standards of representation of claimant personal injury and medical negligence clients, 2. Share knowledge and information among members of the Forum, 3. Further better understanding in the wider community of issues which arise for those who suffer serious injury, 4. Use members' expertise to promote improvements to the legal process and to inform debate, 5. Develop fellowship among members. See further www.focis.org.uk. Membership of FOCIS is intended to be at the most senior level of the profession, currently standing at 29 members. The only formal requirement for membership of FOCIS is that members should have achieved a pre-eminence in their personal injury field. Four of the past presidents of APIL are members of FOCIS. Firms represented by FOCIS members include: Anthony Gold Atherton Godfrey Boyes Turner Digby Brown Field Fisher Waterhouse Freeth Cartwright Girlings Hodge Jones & Allen Hugh James Irwin Mitchell Kester Cunningham John Kingsley Napley Leigh Day Linder Myers McCool Patterson Hemsi & Co Osborne Morris & Morgan Pannones Parlett Kent Potter Rees Prince Evans Russell-Cooke Russell Jones & Walker Stewarts Law 1 FOCIS) has been the name since 2007 of the organisation formerly known as the Richard Grand Society (founded in 1997 based on the concept of the American „Inner Circle of Advocates‟ which had been formed in 1972 by Arizona and San Francisco Attorney Richard Grand). 1.2 This response This response focuses solely on the conduct of the serious injury claims and group actions handled by FOCIS members. 1.3 Our data We attach data collected from 8 member firms of FOCIS regarding catastrophic injury cases concluded over the 5 month period between January and May 2010 2 . This exercise was carried out to support our response to the other Green Paper. The numbers of legal aid cases are not statistically significant enough to enable reliable general conclusions to be drawn. However, as a random snapshot, it shows: In our sample of cases concluded by 8 member firms there were 5 successful legally aided catastrophic clinical negligence cases between January and May 2010, our members recovered 10.9m in total damages (a mean of £2.1m and a median of £1m) at a total gross cost of £721,826 (including counsel and disbursements). Almost all of such costs were paid by the losing party and not out of the Legal Aid Fund. Over the same period, 5 out of 8 of the firms abandoned 7 potential catastrophic injury cases at a total gross cost to the Legal Aid Fund of £56,216 (including disbursements). The average disbursements in winning cases were £35,685. 2 Only 5 of those 8 firms were able to let us have data relating to failed and abandoned cases over the same period (because their management systems did not easily enable them to capture this data), so the data for failed cases is significantly understated in the „CFA only‟ data set. The „winners v losers‟ dataset includes the data only from the 5 firms who supplied both winners and losers. 2. Reponses to Questions Scope Question 1: Do you agree with the proposals to retain the types of case and proceedings listed in paragraphs 4.37 to 4.144 of the consultation document within the scope of the civil and family legal aid scheme? Please give reasons. Claims against public authorities [excluding clinical negligence] We agree that it is essential that some cases remain within scope. However, we think that the bar is set too high. We suggest instead: i) abuse of position of power; and/or ii) breach of human rights; and/or iii) negligent acts or omissions falling below the required standard of care required in accordance with the Bolam/Bolitho test. We agree that a SLAS is particularly suitable for funding such cases. Claims arising from allegations of abuse and sexual assault We agree that these should remain with in scope. These are claims by very vulnerable individuals usually against powerful institutions. It would be difficult to fund many such cases through CFAs, particularly because of the high investigative cos ts and the difficulty in obtaining evidence. Legal Help at inquests This is sometimes required by our members to assist bereaved families. We agree it should remain in scope. We do not agree that publicly Legal Representation at inquests is not needed. Legal Help for inquests is often granted where there are serious legal and factual issues involved in clinical negligence cases, serious accidents , military inquests or deaths in custody. In such cases the bereaved family will be faced with several legal teams often with QCs representing hospitals, doctors, the MOD , the Home Office, the Prison Service, police or prison officers. The form and factual content of the verdict can be of crucial importance. The Coroner is no position to help unrepresented parties faced with such complexity and submissions from other legal teams. A bereaved family will have difficulty maintaining their composure in incredibly emotive and emotional circumstances. They will not be in a position to familiarise themselves with the Human Rights law, the law of tort and Coroner‟s rules. They will not be a position to frame and ask appropriate questions designed to elicit the appropriate evidence from witnesses not make appropriate submissions to the Coroner. Inquest are highly technical legal courts of law. Families will not be able to participate effectively in the inquest, especially if it is an “Article 2 ECHR” inquest . Without legal help they will be interested bystanders. Crucial evidence essential to their case will not emerge. We consider it essential that legal aid is retained for representation at such inquests. Education We consider that taking education appeals to the Upper Tribunal (the old Rule 53 jurisdiction), as it is proposed, is a serious mistake as these are appeals on points of law in an area where there is a complex statutory scheme and a substantial body of case law. It is very difficult for a non- lawyer to run such cases efficiently and effectively, if at all. This is often compounded by the fact that parents of children with Special Educational Needs (SEN) are disproportionately likely themselves to have SEN and come from a background of disadvantage. The ability to run these cases will be largely taken away if public funding is removed across the board from education. This would be very bad news for poor parents and their children who are excluded from school or have severe SEN and who will have no legal assistance whatever the importance of the issue or the complexities of the law. The consequences of taking Education wholesale out of scope will impact not only upon some of the most vulnerable in society but will also impact dramatically on the cost and efficiency of the Court and Tribunal Services. When one considers the relatively minor sums of money expended on the provision of these services (around £0.5 million) set against the impact upon the poor and vulnerable and upon the efficient operation of justice, we consider that this proposal is seriously misguided. We consider that the MoJ has, in taking the whole of Education out of scope, failed to give appropriate weight to the degree of vulnerability of many beneficiaries of legal aid in this area and the fundamental right to education in play. The MoJ further appears to have failed to have distinguished, for example, between the types of cases ranging from those with SEN, exclusion cases, admissions and higher education. Applying the MoJ's own criteria, we consider that at least in respect of SEN and exclusion cases, all four of the MoJ's criteria for retaining an area in scope are met and that this proposal must be reconsidered.These claims should remain in scope. There is often an overlap between clinical negligence victims and education claims. Environmental matters We agree that legal aid should be retained. Question 2: Do you agree with the proposal to make changes to court powers in ancillary relief cases to enable the Court to make interim lump sum orders against a party who has the means to fund the costs of representation for the other party? Please give reasons. Not applicable. These are not areas of law in which FOCIS members generally specialise. Question 3: Do you agree with the proposals to exclude the types of case and proceedings listed in paragraphs 4.148 to 4.245 from the scope of the civil and family legal aid scheme? Please give reasons. We do not think that in the light of the proposed cuts that realistically personal injury generally can come back into scope at the present time. However, the fundamental changes proposed to CFAs (see the other government Green Paper) are likely to lead to significant numbers of complex and expensive claims no longer getting access to justice. In these circumstances, the government should legislate to bring them within the scope of legal aid otherwise such claimants will be effectively denied access to justice. Clinical negligence We do not agree with the proposals to exclude clinical negligence cases from the scope of legal aid. We do appreciate that with the current constraints on public funding some hard choices have to be made, but we think that in respect of clinical negligence claims (which are usually claims for injury caused by a state institution), the proposals go too far. Whilst in less serious claims it may be that either the litigation system will be reformed (whether through implementation of Redress or otherwise) and will lead t o different discussions on funding, and in moderately severe cases CFAs may be able to replace public funding in many cases, this is not so with the most serious cases. We believe that the combined impact of the withdrawal of Legal Aid for clinical negligence litigation and the proposed reforms of the costs recovery for CFA funded work in the field (non recoverability of Success Fees and ATE inter partes with recovery of SF against Client capped at 25% of general damages) will leave seriously injured and vulnerable claimants with no, or very much reduced, Access to Justice. This is because if the civil litigation funding reforms are introduced as proposed, they will not provide a reasonable and viable alternative to public funding for this group of Claimants. The reasons we oppose the proposals are as follows:- • Claims involving very severe and life changing injury or death are ones which, by definition, are brought by or for people who are physically and emotionally vulnerable as a result of disability. They are also claims which are often brought in traumatising circumstances and are associated with, or made complex by, the age of the injured person (whether young or old). • As a class of litigants, Claimant‟s in severe injury cases are more likely to be disabled, frail, elderly or too young to bring proceedings on their own behalf. In many cases they will lack capacity as a consequence of the injuries they have sustained. • Clinical negligence litigation is dependent upon expert opinion not just (as is the case in other areas of personal injury litigation) in relation to the nature and cause of injury, but also in relation to whether a breach of duty has occurred at all and the nature of that breach of duty. The inter-relationship between the medical issues relating to breach of duty and how they then impact upon medical causation are almost always exceptionally complex. As a result it is unlikely that a litigant would be able to represent him/herself effectively in a contested clinical negligence claim. • In many cases the Claimant will have no recollection of the events that are the subject of investigation. For example, because they were unconscious at the time or, as in the case of fatal claims, will not even have been there. In those cases in particular, careful forensic analysis of the records and the Claimant‟s condition by and in consultation with medical experts is essential in order to determine whether there was a breach of duty and the consequences of any such breach. • The nature of clinical negligence litigation is such that expert opinion on issues arising from factual and expert evidence and the basis of any defence that is disclosed requires experts to be closely involved at every stage of the case. Thus, expert fees are not “one off costs”. • This fundamental dependence upon medical expert opinion and the inter- relation between it and the law of tort makes clinical negligence cases particularly complex. • The issues in clinical negligence cases are important and where there has been severe and life changing injury or death the damages which are sought are primarily required to meet the Claimant‟s needs for the future (or those of their family in the event of a fatal claim). • Even for those who have the benefit of Legal Expense Insurance (LEI), such cover does not provide an alternative method of funding to a sufficient level to be able to pursue a clinical negligence case involving significant injury to a contested Trial. This is because it is never sufficient to cover the Claimant‟s own costs and disbursements as well as his/her adverse costs risk in the event of losing. Further, many LEI providers now require claimant lawyers to act under a CFA rather than indemnifying the Claimant for own solicitor‟s fees, thereby creating simply a different route into the CFA funded world. • The high level of disbursements that have to be incurred in clinical negligence cases are beyond the means of the majority of Claimants. Carrying disbursements of £15-60k per case on an entire case load is beyond the cash flow capacity of most firms. For many firms, if there is no alternative means of funding or being indemnified in respect of these disbursements, they will have no choice but to either limit their exposure significantly or withdraw completely from the market. The consequence of that will be that seriously injured and vulnerable people will have difficulty finding lawyers to represent them and as a group their access to Justice will be fettered. • Limiting publicly funded work to specialist franchised firms and the introduction of the VHCC scheme has resulted in a 91% success rate in those cases which are pursued. With the introduction of the VHCC and specialist franchised firms the average cost per clinical negligence case to the legal aid fund is now only £5,495 (a cost which could be met by a targeted SLAS scheme). • The current CFA regime has provided a viable alternative method of funding cases. With some streamlining (which we propose below) we believe it can continue to do so whilst a the same time encouraging sensible litigation behaviour and reducing the costs born by unsuccessful Defendants. Such a scheme also provides a successful Defendant (most usually the NHS in clinical negligence cases) with the opportunity to recover their costs where a Claimant is unsuccessful. However, if clinical negligence cases remain in scope and the government reforms CFAs as proposed in the other Green Paper, clinical negligence claims may be appropriate for a SLAS as outlined in our answer to Question 44. Legal Help for the Criminal Injuries Compensation Authority We agree that this should come out of scope. Multi-party actions The current Funding Code does not provide for Multi-Party personal injury actions as a category of case to be eligible for Public Funding; money claims being excluded generally. However if such an action satisfied the category of "significant wider public interest" then it may receive Public Funding. This is what is currently used to secure Public Funding of Group Action personal injury claims including product liability and industrial disease. The Consultation Paper appears to state at least indirectly in its plans that it will be reversing its policy of funding or contributing to the funding of Group Actions with the exception of a reference to maintaining claims against public authorities. It describes in paragraph 4.55,"We do not propose to retain the existing rule in the Funding Code that brings back into scope of civil legal aid any issue for which it is argued that Significant Wider Public Interest applies (see paragraphs 4.252 to 4.254)." Then at 4.256, "As set out above, while it is proposed that public interest will no longer allow legal aid to be granted in out of scope areas (except inquests), it will continue to be a relevant feature in the civil legal aid merits criteria (in particular, for cases where the benefit to the litigant alone would not otherwise pass the cost/benefit test for funding)." These two paragraphs suggest no funding will be available for any personal injury Group Actions beyond the narrow scope of abuse claims involving public authorities. Even this proposal would seem to lead the odd and arbitrary distinction between claims against Churches whilst still permitting them against public authorities. These proposals will preclude any personal injury cases being pursued in serious and complex actions. This would mean claims successfully brought in the past including the pharmaceutical product liability claim Vigabatrin and the national industrial disease litigation Miners' Respiratory and Miners' VWF cases, are unlikely to be brought. These claims against heavily resourced industrial and commercial defendants will be impossible to bring primarily because of the loss of the costs protection brought by Public Funding and the impossibility of securing insurance of sufficient level to replace that protection. Question 4: Do you agree with the Government‟s proposals to introduce a new scheme for funding individual cases excluded from the proposed scope, which will only generally provide funding where the provision of some level of legal aid is necessary to meet domestic and international legal obligations (including those under the European Convention on Human Rights) or where there is a significant wider public interest in funding Legal Representation for inquest cases? Please give reasons. Current exceptional funding scheme We agree that an exceptional funding scheme must remain. We agree that if the government takes most clinical negligence cases out of scope of legal aid, then the exceptional funding scheme must provide for the most serious clinical negligence cases (including, but not only, cerebral palsy claims) to be funded under legal aid. We do not agree with removing „significant wider public interest‟ or ‟overwhelming importance to the client‟ as part of the criteria. This is particularly important to enable investigation of fatal claims where the often limited compensation limits the availability of CFAs. We consider the proposed wording to be very uclear and far from obvious in meeting the government‟s express intentions (and, in particular, to provide for the most serious clinical negligence cases (including, but not only, cerebral palsy claims) to be funded under legal aid. If the government proceeds we would expect to be specifically consulted on the drafting of the specific provisions. Question 5: Do you agree with the Government‟s proposal to amend the merits criteria for civil legal aid so that funding can be refused in any individual civil case which is suitable for an alternative source of funding, such as a Conditional Fee Arrangement? Please give reasons. Yes, but this must be subjective test as to whether the solicitor on reasonable grounds is unable to offer a CFA. This might include high investigative costs or the high level of disbursements or other impact of the case on cashflow and lock up making it impractical for the solicitor to run it on a CFA Question 6: We would welcome views or evidence on the potential impact of the proposed reforms to the scope of legal aid on litigants in person and the conduct of proceedings. Not applicable. This is not common in areas of law in which FOCIS members generally specialise. However, we would point out that the removal of so much from the scope of legal aid, combined with the concurrent reforms to CFAs proposed by Lord Justice Jackson, are likely to lead to a significant increase in the numbers of litigants in person. The Community Legal Advice Telephone Helpline Question 7: Do you agree that the Community Legal Advice helpline should be established as the single gateway to access civil legal aid advice? Please give reasons. We very much doubt that the helpline is the most appropriate way of signposting clinical negligence victims. Adequate training would need to be given to enable the helpline staff to recognise such cases and refer only to specialists for investigation, whether under public funding or CFAs. Most clients are more likely to make their way direct to a specialist lawyer who will „triage‟ the potential claim either pro bono or through advice and assistance. Even if advice and assistances schemes were abolished, it would be ludicrous to deny public funding to a clinical negligence client who has found their way direct to a specialist lawyer simply because they did not go via the helpline (if that is what is proposed). Question 8: Do you agree that specialist advice should be offered through the Community Legal Advice helpline in all categories of law and that, in some categories, the majority of civil Legal Help clients and cases can be dealt with through this channel? Please give reasons. Please see our answer to question 7 with regard to clinical negligence Question 9: What factors should be taken into account when devising the criteria for determining when face to face advice will be required? We think that this should remain for clinical negligence claims and indeed other cases of personal injury which remain within scope (eg abuse cases). Question 10: Which organisations should work strategically with Community Legal Advice and what form should this joint working take? The CLS should improve links with organisations such as AvMA to improve the referral of injured people to specialist lawyers. Question 11: Do you agree that the Legal Services Commission should offer access to paid advice services for ineligible clients through the Community Legal Advice helpline? Please give reasons. No. Financial Eligibility Question 12: Do you agree with the proposal that applicants for legal aid who are in receipt of passporting benefits should be subject to the same capital eligibility rules as other applicants? Please give reasons. We do not believe that there is any logical reason for limiting eligibility beyond the stringent limits already imposed which will only further restrict access to justice. They will also seriously restrict the numbers of eligible clients for which cases can be brought under the proposed SLAS. Question 13: Do you agree with the proposal that clients with £1,000 or more disposable capital should be asked to pay a £100 contribution? Please give reasons. No. See our answer to question 12. Question 14: Do you agree with the proposals to abolish the equity and pensioner capital disregards for cases other than contested property cases? Please give reasons. No. See our answer to question 12. These categories of clients are in vulnerable groups and as they have less earning potential have a greater fear of using their capital. They will therefore be deterred from taking legal action by such measures. Question 15: Do you agree with the proposals to retain the mortgage disregard, to remove the £100,000 limit, and to have a gross capital limit of £200,000 in cases other than contested property cases (with a £300,000 limit for pensioners with an assessed disposable income of £315 per month or less)? Please give reasons. No. See our answer to question 12. Question 16: Do you agree with the proposal to introduce a discretionary waiver scheme for property capital limits in certain circumstances? The Government would welcome views in particular on whether the conditions listed in paragraphs 5.33 to 5.37 are the appropriate circumstances for exercising such a waiver. Please give reasons. If the government‟s proposed cuts are implemented, then yes. Question 17: Do you agree with the proposals to have conditions in respect of the waiver scheme so that costs are repayable at the end of the case and, to that end, to place a charge on property similar to the existing statutory charge scheme? Please give reasons. The Government would welcome views in particular on the proposed interest rate scheme at paragraph 5.35 in relation to deferred charges. Not applicable. These are not areas of law in which FOCIS members generally specialise. Question 18: Do you agree that the property eligibility waiver should be exercised automatically for Legal Help for individuals in non-contested property cases with properties worth £200,000 or less (£300,000 in the case of pensioners with disposable income of £315 per month or less)? Please give reasons. Not applicable. These are not areas of law in which FOCIS members generally specialise. Question 19: Do you agree that we should retain the „subject matter of the dispute‟ disregard for contested property cases, capped at £100,000 for all levels of service? Please give reasons. Not applicable. These are not areas of law in which FOCIS members generally specialise. Question 20: Do you agree that the equity and pensioner disregards should be abolished for contested property cases? Please give reasons. Not applicable. These are not areas of law in which FOCIS members generally specialise. Question 21: Do you agree that, for contested property cases, the mortgage disregard should be retained and uncapped, and that there should be a gross capital limit of £500,000 for all clients? Please give reasons. Not applicable. These are not areas of law in which FOCIS members generally specialise. Question 22: Do you agree with the proposal to raise the levels of income-based contributions up to a maximum of 30% of monthly disposable income? Please give reasons. No. See our answer to question 12. Question 23: Which of the two proposed models described at paragraphs 5.59 to 5.63 would represent the most equitable means of implementing an increase in income- based contributions? Are there other alternative models we should consider? Please give reasons. See our answer to question 12. Criminal Remuneration Questions 24 – 31 Not applicable. These are not areas of law in which FOCIS members generally specialise. Civil Remuneration Question 32: Do you agree with the proposal to reduce all fees paid in civil and family matters by 10%, rather than undertake a more radical restructuring of civil and family legal aid fees? Please give reasons. No. The rates are already very low. The proposals will increase the losses being made on the work which will inevitably mean that fewer specialist solicitors will be prepared to do the work. Question 33: Do you agree with the proposal to cap and set criteria for enhancements to hourly rates payable to solicitors in civil cases? If so, we would welcome views on the criteria which may be appropriate. Please give reasons. No, the rates are already very low. The proposals will increase the losses being made on the work which will inevitably mean that fewer specia list solicitors will be prepared to do the work. However, in any event most cases dealt with by FOCIS members ware handled at fixed rates under contract. Question 34: Do you agree with the proposal to codify the rates paid to barristers as set out in Table 5, subject to a further 10% reduction? Please give reasons. Not applicable. FOCIS members are solicitors. Question 35: Do you agree with the proposals: to apply „risk rates‟ to every civil non- family case where costs may be ordered against the opponent; and to apply „risk rates‟ from the end of the investigative stage or once total costs reach £25,000, or from the beginning of cases with no investigative stage? Please give reasons. The system is working efficiently as it is and we see no good reason to change it. Question 36: The Government would also welcome views on whether there are types of civil non-family case (other than those described in paragraphs 7.22 and 7.23) for which the application of „risk rates‟ would not be justifiable, for example, because there is less likelihood of cost recovery or ability to predict the outcome. We agree that „risk rates‟ are not appropriate in many cases. The system is working efficiently and we see no good reason to change it. Question 37: Do you agree with the proposal to cap and set criteria for enhancements to hourly rates payable to solicitors in family cases? If so, we would welcome views on the criteria which may be appropriate. Please give reasons. Not applicable. These are not areas of law in which FOCIS members generally specialise. Question 38: Do you agree with the proposals to restrict the use of Queen‟s Counsel in family cases to cases where provisions similar to those in criminal cases apply? Please give reasons. Not applicable. These are not areas of law in which FOCIS members generally specialise. Expert Remuneration Question 39: Do you agree that: there should be a clear structure for the fees to be paid to experts from legal aid; in the short term, the current benchmark hourly rates, reduced by 10%, should be codified; in the longer term, the structure of experts‟ fees should include both fixed and graduated fees and a limited number of hourly rates; the categorisations of fixed and graduated fees shown in Annex J are appropriate; and the proposed provisions for „exceptional‟ cases set out at paragraph 8.16 are reasonable and practicable? Please give reasons. No, we do not agree with the proposals. The current system for dealing with experts and their payment in contracted cases works well. The rates currently paid to experts under legal aid are too low to secure the most appropriate expert. In clinical negligence cases in particular this can be crucial to the success or failure of a case. The NHSLA are not subject to a similar restraint, so there is already an „inequality of arms‟. The proposals will make this even worse. In particular, we note and express our very grave concern about the proposal at para 8.16 that the legal aid rates bind the court and will cap the sums payable inter partes. In our view, this will effectively make the legal aid scheme unusable by claimants in clinical negligence cases and may be a breach of Article 6 (particularly as the state, the NHSLA, is usually the defendant and has no such restrictions). The consultation in relation to expert fees whilst mentioning civil litigation does not appear to focus on the use of experts in clinical negligence cases and completely fails to address the aspects upon which their expert opinion and input is required. Clinical negligence litigation is unique in that the question of whether or not there is a claim to be pursued is dependent upon one or more experts advising that there has been a breach of duty, one or more experts then advising that the consequence of the breach of duty was an injury and the nature and extent of that injury (as compared with the non-negligent condition of the Claimant) and then further expert advice on the financial consequences of the negligently caused injury. No othe r field of litigation requires such extensive expert (and often overlapping and intertwined) evidence and involvement. To apply a fee structure that is anything other than an hourly rate which represents the rate charged by experts whomsoever they are instructed by would be to fetter if not render to impossible the Claimant‟s ability to investigate, pursue and to prove a claim in a field which the medical Defendant has in house access to expert opinion and who do not have fee limits imposed upon them. Alternative Sources of Funding Question 40: Do you think that there are any barriers to the introduction of a scheme to secure interest on client accounts? Please give reasons. Yes. Those solicitors who have larger client account balances do not undertake legal aid work. This is effectively an additional tax on solicitors. Clients may be uncomfortable at government interference in where they hold their money. Banks will withdraw overdraft funding from firms undertaking CFA work if they no longer have the benefit of their clients‟ accounts. Question 41: Which model do you believe would be most effective: Model A: under which solicitors would retain client monies in their client accounts, but would remit interest to the Government; or Model B: under which general client accounts would be pooled into a Government bank account? Please give reasons. If introduced, Model A. Model B is administratively likely to be a nightmare and very expensive, clients will be worried about their money passing out of the control of their solicitors. This is a „big state‟, „big brother‟ solution which is wholly inappropriate in a free enterprise society like the UK. It is very surprising that a Conservative and Lib Dem coalition government should suggest such state interference with business. In addition, the loss of clients‟ accounts will seriously damage the ability of firms undertaking CFA work to obtain bank overdraft funding. The banks use the solicitors ‟ clients‟ accounts to generate additional „turns‟ for themselves on the money markets, making solicitors rather more attractive business prospects. If the government damage this relationship through Model B, it is very unlikely that solicitors will be able to take up additional CFA work (as effectively required by the government reforms) as they will not be able to secure lines of credit to fund the work over the several years of a case. Question 42: Do you think that a scheme to secure interest on client accounts would be most effective if it were based on a: a) mandatory model; b) voluntary opt- in model; or c) voluntary opt-out model? Please give reasons. Voluntary opt in. Some firms may wish to participate, but this should not be mandatory. Question 43: Do you agree with the proposal to introduce a Supplementary Legal Aid Scheme? Please give reasons. In principle, yes. See our answer to Question 44. Question 44: Do you agree that the amount recovered should be set as a percentage of general damages? If so, what should the percentage be? As set out in our response to the government‟s Green Paper on Reform of Civil Litigation Funding and Costs, FOCIS does not agree with the government‟s proposals to end recoverability of success fees. However, the government in that Green Paper has made it abundantly clear that it believes that Jackson LJ‟s proposals to abolish recoverability and require claimants to contribute up to 25% of general damages and past loss should be implemented. If this is implemented, we have argued in our response to the other Green Paper that instead of an across the board increase in General Damages of 10% as proposed by Lord Justice Jackson, we prefer the government‟s proposed refinement: „a preferable way of framing this recommendation might be to retain an element of the success fee which is recoverable by the claimant, but to provide for this to be calculated as a sum equal to 10% of the general damages award in each case (including in settled cases). This would focus the provision on cases funded by CFAs and would achieve the same result in those cases as Sir Rupert‟s proposal without creating a fundamental and anomalous change to the basis on which damages are calculated.‟ Our response to the other Green Paper qualifies this as follows: That it is unclear on the data submitted by Professor Fenn whether 10% is the right figure; Whether different amounts should be allowed for different types of claim (data submitted by FOCIS and annexed to that response shows that for catastrophic injury claims the required increase would be 44%). Whether recoverability should be retained for certain categories of case; That it may be better to apply the percentage increase to General Damages and past loss. That an increase of 10% in General Damages will not properly compensate the victims of fatal accidents as in such cases, General Damages are low or zero (f death is instantaneous) So far as civil litigation remains within scope of legal aid there is no reason why a similar sum (i.e. a sum equal to 10% of general damages and, we propose, past loss should not be paid by the losing party in publicly funded cases to give effect to the Supplemental Legal Aid Scheme proposals. Indeed, the government‟s refinement to the Jackson proposals (of a 10% increase in general damages) may be a less controversial way of implementing a SLAS than the government expressly taking a slice of the client damages. Governance and Administration Question 45: The Government would welcome views on where regulators could play a more active role in quality assurance, balanced against the continuing need to have in place and demonstrate robust central financial and quality controls. Not applicable Question 46: The Government would welcome views on the administration of legal aid, and in particular: the application process for civil and criminal legal aid; applying for amendments, payments on account etc.; bill submission and final settlement of legal aid claims; and whether the system of Standard Monthly Payments should be retained or should there be a move to payment as billed? With regard to contracted cases, the staff at the Special Cases Unit handle this efficiently and there is no reason to make any change. However, otherwise the current administration of legal aid leaves much to be desired. Backlogs in processing bills and decisions has caused great hardship to firms and prejudice to clients. In March 2010 with no warning the LSC announced that it would not process anymore bills before the end of its financial year. Firms expected payments of £100,000-£200,000 which they need to pay salaries received little or nothing and had to make emergency arrangements. Applications for hardship payments were turned down . Although invited, it turned out there was no money to pay such hardship payments. It took 8 weeks before payments returned to normal. The LSC appears to have no understanding of the vulnerable position of legal aid firms and the effect of turning on and off the financial tap. We have noticed an increase in bureaucracy and reductions in bills since the NAO audit of the LSC. The LSC is attempting to reopen cost assessments more than two years old to audit them even though there appears to be no power to do this. Question 47: In light of the current programme of the Legal Services Commission to make greater use of electronic working, legal aid practitioners are asked to give views on their readiness to work in this way. Not applicable. Question 48: Are there any other factors you think the Government should consider to improve the administration of legal aid? See our answer to question 46. Impact Assessments Question 49: Do you agree that we have correctly identified the range of impacts under the proposals set out in this consultation paper? Please give reasons. By definition, catastrophic injury victims are likely to be „disabled‟. They are likely to be adversely affected by the proposals. Our data submitted with our response to the other Green Paper shows: The proposed 10% increase in General Damages is inadequate for catastrophic injury victims. 93% of catastrophic injury victims will be worse off. As Professor Fenn‟s data apparently shows that overall 63% of claimants will be „better off‟, this shows that the disabled will be very adversely affected by the proposals. Those claimants who are presently able to access legal aid but who will no longer be able ot do so after the implementation of the government‟s proposals are therefore likely to be very adversely affected by the abolition of legal aid. The average disbursements catastrophic injury victims will be asked to fund (£[30,300]) is considerably higher than the average mentioned in the Jackson report (£441 in RTA and £588 in employer‟s liability accident claims). Those claimants who presently funded by legal aid have disbursements advanced by (and underwritten) by legal aid. They will be adversely affected by proposals that require them to fund these themselves or find a lawyer able to do so. Question 50: Do you agree that we have correctly identified the extent of impacts under these proposals? Please give reasons. See our answer to question 49. Question 51: Are there forms of mitigation in relation to client impacts that we have not considered? See our answer to question 49.
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