The Government published The Legal Aid, Sentencing and Punishment of Offenders Bill on 21 June, confirming that legal aid will no longer, generally, be available to investigate and pursue clinical negligence claims. The bill was released despite a huge number of objections being voiced at consultation stage after the Government announced this proposal in November, as part of its plan to shave £350 million off the legal aid budget.
As matters currently stand, legal aid is available to investigate clinical negligence cases where the Legal Services Commission's merits and means tests are satisfied. The merits test involves consideration of the likely prospects of success but also whether the benefits of pursuing the claim outweigh the costs of pursuing the claim sufficiently. The means test considers the means (capital and income) of the individual, with only those with low incomes and very limited capital being eligible for legal aid. In the case of children, it is the means of the child which are relevant rather than the means of the parents. In the circumstances, the vast majority of children with brain injuries alleged to be due to birth related or neonatal/paediatric injuries, will be eligible for legal aid on the basis of their means as long as they do not have significant income or capital of their own or other sources of funding at their disposal, for example legal expenses insurance.
Children and adults with brain injuries, alleged to be due to substandard medical treatment, often have significant care needs and remain extremely vulnerable. There is concern that, in the future, such individuals will have insufficient access to justice to pursue their potential claims. Without appropriate funding, vulnerable individuals may find it difficult to find legal representation. Even if they do, they may be asked to fund expensive expert reports, which are required to assess the merits of complex cases, or to put some of any damages they recover towards the costs of the litigation.
The legal aid proposals come hot on the heels of the planned reforms to civil costs, following Lord Jackson's review of this area. He proposed significant changes to the conditional fee agreement regime which is currently used to fund many cases where individuals are not eligible for legal aid on the basis of their means. Lord Jackson specifically stated in his report that legal aid should remain in place at its current level but it seems this is not to be.
Lord Jackson's proposal was that after the event (ATE) insurance premiums relating to insurance to cover a claimant's liability for their own disbursements and the defendant's costs, in the event that their case is lost, should no longer be recoverable from the defendant in the event of a successful claim (as is the case now).
The one concession that the Government has made in the recent Bill is that, in clinical negligence cases, ATE premiums to cover the cost of expert reports, will remain recoverable from the defendants in successful claims. This concession reflects concerns at the high cost of experts' fees payable in clinical negligence cases, for which claimants would be liable if their cases were not won.
It does not appear that any changes to the funding regime will be retrospective so those who are currently receiving legal aid or who are granted legal aid before any changes come into force should be unaffected. It is not yet clear when the changes will be effective but, if anyone is contemplating pursuing a claim and hopes to secure legal aid funding, they should not delay.