The medical safety charity Action Against Medical Accidents (AvMA) is taking action in a bid to stop the government cutting legal aid for medical negligence claimants.
AvMA is issuing judicial proceedings against the government, claiming the proposed cuts are "irrational and unfair" and it rejects suggestions made by the Ministry of Justice that patients won't lose out because the cases would then be taken up by no win, no fee solicitors. It says that studies are showing that approximately half of all cases, currently protected by legal aid, would not be taken up by these solicitors because they are too complex and "risky".
The removal of legal aid away from these claims is an element of proposals which are aimed at saving £10m a year, which are making their way through parliament in the form of the Legal Aid, Sentencing and Punishment of Offenders Bill.
However, it has drawn many critics, not least the NHS Litigation Authority, which handles negligence claims made against the NHS. This organisation claims the plans will exclude the victims most at need while Lord Justice Jackson, who produced an independent report into civil litigation reform last year, also voiced his opposition. He was quoted saying the cuts in legal aid were contrary to his recommendations.
However, a Ministry of Justice spokesman insisted that legal aid would still be available to cover the cost of some of the most serious and complex cases where no win, no fee agreements were not available. He said: "We have to ensure that legal aid is targeted at those who need it most."
The AvMA, in arguing for the retention of legal aid, claims the government has not been paying attention to the compelling arguments which have been put forward and says that legal aid spending on medical negligence, that is thought to be around £17m, is a fraction of the total legal aid budget which stands at about £2.2bn.
No win, no fee claims are being reformed which means lawyers will eventually not be in a position to claim a 'success fee' off the losing side as is presently the case and will, as an alternative, be given a share from the damages. However, whilst parliament hopes that the moves will deter some from bringing spurious claims, the AvMA fears that poorer claimants would be the losers in the reforms with the most vulnerable in society not being able to persuade lawyers to take their cases on.
Lord Justice Jackson's report, last year, stated that reforms could save millions and Justice Secretary Ken Clarke said he wished to reintroduce proportion and confidence back into the justice system. He explained the reforms were necessary as the current no win, no fee agreements encouraged defendants to settle their claim even when they felt their case to be a strong one, due to the deterrent of possibly having to face exhorbitant legal fees.
Clarke stated that giving claimants a 10% uplift in general damages, and making them pay their own legal team a success fee from the money they receive, would help ensure that they took a personal interest in imposing a limit on the bills being run up by the solicitors, because it would then be money they themselves have to pay for instead of the opposing side.
Ministry of Justice figures for 2008/09 show that the NHS paid £312m in damages and a further amount of £456m in legal costs and the Justice Secretary claims that the reforms will help save the health service about £50m a year.
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