Lord Justice Jackson: legal aid should remain for clinical negligence

13 September 2011 by Isabel McArdle

Lord Justice Jackson spoke in strong terms last week to the Cambridge Law Faculty on the controversial topic of legal aid and legal costs reforms.

The architect of the proposed reforms to legal costs made clear his position on the government’s proposed amendments, set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, which was reviewed by the Committee of the House of Commons today, 13 September (listen to the committee recording here). He was keen to highlight which parts of the reforms reflect he views expressed in his report, and which parts he does not consider to be in the interests of justice. He said, in summary:

First, every profession or organisation which provides a public service at public expense is quite properly and understandably pressing its own case in the present round of spending cuts. The Law Society and the judiciary quite properly press the case for retaining legal aid on the grounds of public interest. I have supported that case and continue to do so. It is the function of Government to listen to the arguments advanced by all the competing public interests and then to decide where the axe shall fall – hopefully in a manner which is least injurious to the public good. If the Government’s decision is to cut back legal aid to the extent indicated in its Consultation Response dated June 2011, then so be it, although I regret the decision for the reasons mentioned above.

Secondly, the Law Society in running a single campaign against both the Legal Aid cuts and the Jackson proposals has created certain difficulties. It is right and proper that the Law Society should be campaigning to retain the present scope of legal aid. This case clearly rests on public interest grounds, even if the campaign ultimately fails because other public interests are deemed to be greater. However, the campaign against the Jackson proposals is not based upon the public interest at all. For the reasons set out above, this campaign is in my view inimical to the public interest – although it is very much in the interests of those groups who are making disproportionate profits out of the current arrangements. Indeed, to their credit, many lawyers publicly (and even more lawyers privately) recognise that the present rules re CFAs and ATE insurance are deeply flawed and require reform along the lines I propose.

The Law Society may wish to consider whether it is representing (a) the sectional interest and viewpoint of CFA lawyers or (b) the wider public interest. Both roles are perfectly legitimate and I would not presume to criticise the Law Society, whichever decision it makes. I would, however, respectfully suggest that it may be inauspicious to combine both roles in a single campaign.

Thirdly, the Government’s approach in Part 2 of the Bill is to be commended and will, I hope, find favour with Parliament. There is, however, one caveat which needs to be stated. There is a real danger that subsections (2) to (5) of the proposed new section 58C will not achieve the desired objective. Moreover even if these provisions do achieve the desired objective, they will do so in an extremely expensive and inefficient manner. This is, of course, the prerogative of Parliament. Indeed that may not matter greatly if public funds are plentiful and expense is no object, which seemingly was the case when recoverability was introduced in 2000. However, this may not be the case now. Accordingly both the Government and Parliament may care to look again at section 58C (2) – (5) and to consider an obvious alternative means of achieving the same objective at much less cost to the public purse.

The above comments are offered in a constructive spirit. I shall not respond to any of the personal attacks which have been levelled against me in recent months, save to say this. I do not speak on behalf of any particular sector or vested interest. The views which I put forward reflect my conclusions (formed after many months of research, consultation and analysis) as to where the public interest lies. Furthermore, the recommendations contained in the Costs Review Final Report have been endorsed by the Judicial Executive Board and the Judicial Steering Group.

His views on clinical negligence funding were also of interest. He suggests two alternatives to the current proposals for funding in this area, which he considers would be impractical, costly and complex, as well as failing to target the appropriate claimants. In his words, Section 58C (2)-(5) of the Bill provides that in “any viable clinical negligence case the costs of the claimant’s expert reports should fall upon the public purse – regardless of whether the claimant finally wins or loses”.

His two proposals are:

First method. The first possible approach would be to retain legal aid for clinical negligence cases generally. I have made out the best case that I can for such retention in my Final Report, but appreciate that the Government (which has to weigh up the competing claims of different public interests) has so far rejected that approach. I therefore say no more on this aspect, beyond (a) expressing my personal agreement with the Judiciary’s view and the Law Society’s view that clinical negligence should remain within the scope of legal aid and (b) commenting that this issue might possibly be reconsidered.

Second and alternative method. Let me now assume that the first solution is rejected, because Government has made a decision and Parliament will endorse that decision. I then come to the second possible course of action. Here one is on much stronger ground, because this approach will lead to considerable savings of public money.

The solution which I propose is that (a) section 58C (2) to (5) and the proposed regulations thereunder should be scrapped and (b) legal aid should be retained for clinical negligence but solely in respect of the costs of expert reports.

It will be interesting to watch what effect his opinions have, if any, on the Bill as it makes its way through Parliament.

Read more:

• Beware the poor lawyer: the legal aid reform responses
• Legal Aid, Sentencing and Punishment of Offenders Bill- the aftermath