Sunday’s blog about legal aid and clinical negligence prompted an interesting late night discussion on Twitter about whether it was in fact necessary in these cases. The point was made that it is perfectly possibly to pursue them on the basis of no win no fee agreements (CFAs) and the money would be better spent in other areas such as family law and crime.
To be honest they are fair points even though I disagree that CFAs are an ideal substitute for legal aid. Firstly it should be said that these agreements have opened the way to justice for many who were not financially eligible for legal aid. Despite the hostile rhetoric from the media and politicians they have provided many people with access to justice.
But there is still a need for legal aid in many cases. Firstly there are the cutting edge cases that I have talked about before –
There have been many cases where our laws have developed by lawyers pushing the boundaries and legal aid played a big role in this. A compete reliance on CFAs does create a commercial pressure to only take on the safest cases.
I am certainly not against CFAs and have run many cases using them. To some extent the cost of losing a case on a CFA, and not being paid is met by what is known as a success fee. So if a case is won there is a percentage increase which can be claimed to cover the losses in the losing cases. This success fee is currently paid by the NHS Trust if a case against them succeeds. So that does allow for some cutting edge work. But that will all change next year. The success fee will no longer be payable by the losing party. It will have to be paid by the victim out of their damages for pain and suffering – up to a maximum of 25%.
All solicitors have a professional duty to advise clients about the available funding arrangements and to act in the in clients’ best interests. With legal aid a victim gets most and normally all of their compensation. Under a no win no fee agreement they could lose a huge chunk. Although many lawyers will not charge this fee it is bound to deter them from running all but the strongest claims.
But it is going to be more difficult all round, for victims to pursue their cases. The double effect of abolishing legal aid and making claimants pay the success fee will reduce the number of victims who are able to find justice. This is alongside the relentless rhetoric about a compensation culture that makes victims believe that they are ruining the country if the bring a case.
This is why the removal of legal aid – with its negligible savings for the treasury is such a serious blow for ordinary people. And it is why the politicians need to be regularly reminded of the injustice that will be caused.