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Legal Aid Changes: Important News


    From 1 April 2013 the way in which clinical negligence claims can be funded will be changing.

    By Joachim Stanley

Although the new funding changes will not prevent you from suing the NHS or suing a doctor, the new arrangement will not be as advantageous to Claimants as the current system allows for. Therefore it is very important that if you think you may have a claim you contact a specialist medical negligence solicitor immediately to arrange funding for a claim before the changes come into force.

As from 1 April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 will come into force.  Under its provisions, legal aid for medical negligence claims will very restricted.  This Act was highly controversial, and its passage through Parliament was stormy.

Very unusually, it has now attracted criticism from a senior member of the Judiciary. In a recent interview, the President of the UK Supreme Court, Lord Neuberger, commented, “My worry is the removal of legal aid for people to get advice about law and get representation in court will start to undermine the rule of law because people will feel like the government isn’t giving them access to justice in all sorts of cases.”

Lord Bach, the former Labour justice secretary, has also commented: “Has there ever been an Act that so picks on the poor and attacks access to justice?”

Under the new changes, Legal Aid is now restricted to claims involving children who have been seriously injured during pregnancy, childbirth or within the first 8 weeks of life.  So far as we can tell, the “cut off” point of 8 weeks of life is totally arbitrary.

However even with the withdrawal of legal aid for most medical negligence cases there will still be the opportunity to bring a claim under a conditional fee agreement, otherwise known as a “no win, no fee” agreement.  LASPO significantly alters the way in which CFAs work also.

Historically, lawyers who took on CFAs billed the defendant for their time if they won the case, and wrote the costs off if they didn’t.   It was recognised that no lawyer wins every case they take on under a CFA; consequently, they were allowed to charge the Defendant a “success fee” (basically, an uplift in their hourly rate) if they won.  This was to reflect the risk they took in not getting paid at all.   Under LASPO, if you win your case, although your legal costs are still recoverable from the Defendant, the success fee element of the case is not recoverable and can be deducted from your damages.

The most important changes made by LASPO are summarised below:

i) In “No Win No Fee” cases, you are no longer able to claim the ‘success fee’ element of your legal costs from the Defendant if you win.

ii) The risks of having a costs order against you if you are unsuccessful will be reduced through a system called ‘qualified one way costs shifting’.  This upshot of this is that in most cases, a costs order will not be made in favour of the Defendant if you lose.

iii) There will now be a cap to any success fee that can be deducted from your damages of 25% of general damages (damages awarded to compensate for pain and suffering) and past losses (i.e., losses you have already incurred: no deduction can be made from future losses).

iv) In order to assist with the payment of the success fee, the level of damages awarded for pain and suffering will be increased by 10%.

v) There will also be additional pressure on Defendants to settle claims at an early date.  If you make an offer to settle which is rejected, but are then awarded a sum which matches or exceeds that amount, the Defendant will be penalised. The penalty is 10% extra of the damages in claims up to £500,000 and an additional 15% in claims up to £1 million, up to a maximum of £75,000.
If you want to consider suing the NHS or suing a doctor, we cannot overemphasise the importance of consulting a specialist medical negligence lawyer as soon as possible.

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