Few people (particularly lay people) understand fully the changes that are due to come into place relating to funding of clinical negligence claims.

The existing system allows for claimants to recover all or a very substantial part of their legal costs from the defendant if successful. If the claimant is in receipt of legal aid (public funding) then whatever funds have been provided by the Legal Services Commission are repaid to them by the defendant, usually in full. The Legal Services Commission generally gets back all of the limited funds it spends on a successful case.

On an unsuccessful case the Legal Services Commission will write off funds spent and not expect the claimant to pay it back (save in exceptional circumstances, such as fraud).

The whole point of public funding, therefore, is that it is a loan to be repaid only if the case is successful and then normally by the defendant.

There are very strict financial and eligibility criteria to obtaining public funding. There are very strict merits criteria. It is already very difficult to obtain public funding for clinical negligence cases. The Legal Services Commission has more opt outs than could possibly be imagined:

  • Your claim may have significant merit but not enough value – the LSC will not fund.
  • Your claim may be uncertain – the LSC may not fund.
  • Your claim may be significant then the LSC may fund but provide insufficient funds to run the case properly.
  • Your claim may be significant but the LSC are going to pay your medical experts for only part of their fees which means someone has to pay the reminder and so it goes on.

However despite its flaws, the current system does allow people with little or no income to pursue legal claims which they could not otherwise do and to obtain compensation to which they are entitled. It is particularly helpful for children who are assessed on their own financial means. For those children with brain damage or significant disability as a result of clinical negligence matters, it provides a means by which complicated and expensive legal claims can be run.

Very few people have the resources to fund legal claims of this kind. No win, no fee agreements can be difficult to obtain in the more complicated cases. Many people do not have their own legal expenses insurance and in any event this is often limited financially and rarely covers the cost of the claim.

For some therefore, public funding is an essential and only way of funding a case. It should be remembered however that everyone would rather a healthy child than a successful legal claim. Dealing with a child with brain damage as a result of someone’s error is difficult.

However the new systems are clearly designed on the basis that this is not the case. The underlying assumption would appear to be that these people should not really be seeking compensation at all and if they do so they should pay.

So on 1 April 2013 the legal aid (public funding) system will change. The Legal Services Commission will spend a great deal of money and become the Legal Aid Agency.

The Legal Aid Agency can now make profit. This is called the Supplementary Legal Aid Scheme. If a claimant using legal aid is successful the Legal Services Commission will automatically take up to 25% of significant parts of the compensation. There are some aspects which are ring-fenced but, by way of example, compensation for the injury itself is not.

So if the claimant has suffered brain damage as a result of negligence, 25% of the compensation for that damage will be paid over to the Legal Services Commission in addition to them recovering from the defendant every penny of funds they have paid out for that case.

Apparently this will help to offset the cost of the legal aid fund where claims have been unsuccessful.

It is difficult to see how this can be justified even within the current media campaign suggesting that somehow injured people are costing too much money.

If you suffer brain damage as a result of a doctor’s mistake, and you pursue compensation to provide a better quality of life, why should you lose out financially? Why should you pay for the legal aid fund as an innocent victim of negligence? Repaying a loan is reasonable. Paying for a government service out of much-needed compensation is not. That is the role of the tax system.

Access to justice is a fundamental right. These changes are a betrayal of what legal aid is for and more importantly a betrayal of the most vulnerable in society who have been harmed through no fault of their own.