Written evidence from Action Against Medical Accidents Avma LAS 21
Restricted Scope of Legal Aid in Clinical Negligence Claims
1.1. Following April 2013 the scope of legal aid in clinical negligence claims became severely restricted consequently legal aid is now only available to a very small group of potential claimants. Only those people who have suffered a neurological injury believed to have been caused as a result of negligent treatment occurring in utero, during birth or within the first 8 weeks of life are eligible for legal aid. This restriction has severely curtailed access to legal aid and by way of extension of that, access to justice for many people.
1.2. As a result of the restricted scope of legal aid, those members of the public who would have been eligible for legal aid prior to the April 2013 are now only able to bring a claim if they can find a lawyer who is prepared to run their case on a conditional fee agreement. This has had a particularly pronounced effect on people who have low value claims as lawyers are very mindful of the changes to the Civil Procedure Rules (CPR), in particular the potential effects of the way in which the courts will interpret the rules on proportionality.
Damages based agreements (DBAs)
1.3. Although damages based agreements (DBAs) have been available since last year this is not considered to be a valid funding option. Many of our solicitors tell us that the DBA regulations are too rigid and that DBAs do not offer anything more than CFAs. None of the lawyers we spoke to had used a DBA or were offering DBAs to clients.
Low Value Claims
1.4. CPR on proportionality determines that costs must now not only be reasonably incurred and reasonable in amount but also proportionate to the matters in issue. The difficulty arises because the new rule makes clear that costs which are reasonable in amount and reasonably incurred may nevertheless be disallowed if they are disproportionate. The rules go on to state that in order to be proportionate the costs incurred must bear a reasonable relationship to the sums in issue in the proceedings.
1.5. CPR on proportionality also refers to other factors, including: the value of a non-monetary relief; the complexity of the litigation; any additional work generated by the conduct of the paying party and any wider factors such as reputation or public importance. However, there is a sense that considerable emphasis has been put on the relationship between the costs incurred and the sums in issue in the proceedings. Discussions and presentations by various costs judges and relevant masters have done nothing to dispel that understanding. There has yet to be a test case or written guidance to clarify whether the court will give equal weight to all the relevant factors or will be most persuaded by the relationship between the costs incurred and the amount of damages awarded.
1.6. This poses a particular problem for low value cases in clinical negligence. The burden of proving a clinical negligence claim can be onerous and the issues complex. A low value claim can be as costly to run as a higher value claim. As a result lawyers are now far more circumspect about investigating and or bringing clinical negligence cases in claims where the value is relatively low.
Qualifying One Way Costs Shifting (QOCS)
1.7. Although qualified one way costs shifting (QOCS) has been introduced we don’t know of any solicitors or clients who have experienced it. None of the lawyers we spoke to have been exposed to this yet, neither have any of the public seeking advice through AvMA’s services.
Definition of a low value claim
1.8. Prior to April 2013 it was generally accepted that a low value claim was one which was worth less than £25,000. We wish to emphasise that the use of the expression “low value” is to be understood within the context of running a solicitors firm as opposed to what the public might perceive to be low value. For many people claims of less than £25,000 are not low value; awards of £5,000, £10,000 or £20,000 can make the difference between surviving financially or not. LASPO hits the most disadvantaged in society whose claims are generally going to be lower because of their pre existing circumstances. It also hits vulnerable clients whose cases are likely to be more expensive to run due to the additional time needed to accommodate their vulnerability.
1.9. The effect of proportionality together with the loss of recovery of the success fee from the paying party has meant that many law firms conducting clinical negligence litigation have altered their definition of what they consider to be a low value claim. Some firms are now having to consider any claim worth less than £100,000 as the bench mark for a low value claim, others are using a bench mark of £50,000. The variation is subject to consideration being given to the complexity of the case, the issues to be investigated and potentially litigated.
1.10. In effect, this means that many serious but low value claims are having to be turned away by solicitors. For example claims involving the elderly or the death of a baby which often do not attract more than the statutory bereavement award - currently set at £12,980 are at risk of being turned away by solicitors. Experienced clinical negligence lawyers are attempting to run these cases as far as possible because they believe in the fundamental right to access to justice. In order to make these cases economically viable, they are pushed hard at the pre action protocol stage, but many firms are having to draw the line at issuing proceedings and running such cases to trial, regardless of the merits due to concerns about proportionality.
1.11. Many solicitors report that the NHSLA are slow to deal with these cases and refuse to settle them even when issues on liability are obvious. Some take the view that this is partly because the NHSLA is overwhelmed by an increase in the number of claims as a result of the clinical negligence market opening up to non clinical negligence lawyers post LASPO (see additional comments on this point below under the heading Accredited Solicitors). Others consider that the refusal to settle the claims at an early stage is a tactical decision by the NHSLA. All solicitors we have spoken to have reported increased delay in NHSLA managing cases post LASPO.
Accredited Solicitors
1.12. Another effect of the reduction in the scope of legal aid is that there is now a greater chance that members of the public wishing to bring clinical negligence claims will be represented by solicitors who have little or no experience in this field. Clinical negligence is a complex area of law and this factor puts the public and potential clients at unnecessary risk.
1.13. Prior to April 2013, firms were only able to offer legal aid if they had secured a legal aid franchise in clinical negligence. One of the requirements for eligibility of a legal aid franchise was that there was at least one solicitor at the firm who was a member of either the Action against Medical Accidents (AvMA) Specialist Clinical Negligence Referral scheme or the Law Society’s Clinical Negligence Accreditation Scheme. In order for solicitors to be admitted to either panel they must show they have experience in handling clinical negligence claims and therefore have expertise in this field. As the scope of legal aid was much wider then, it meant that a greater number of people were eligible for funding and were protected by lawyers running clinical negligence cases who were experienced in this field.
1.14. As the scope of legal aid for clinical negligence claims has been severely curtailed so too have the number of people eligible for public funding. Fewer lawyers are now offering legal aid but this also means that the protection afforded to the public through accreditation has fallen away.
1.15. Increased numbers of non-specialist firms/organisations are now offering an unsuspecting public services in clinical negligence litigation. Many of those firms have large budgets and can afford significant advertising campaigns however their experience in this field is unchecked; there is no requirement for them to demonstrate any proven expertise. This has been a real failing in the system.
1.16. Some of our panel solicitor’s firms have reported being referred cases, which they have taken over from non specialist lawyers; often the transfer has occurred because the client was dissatisfied with the service they received. They have inherited difficulties with these cases because inappropriate steps such as early, unilateral disclosure of liability evidence has taken place – this step tactically puts the claimant at a disadvantage. Other problems include the failure to progress cases and or advise the client properly.
Increased number of Case
1.17. Many firms signed up cases under the old pre-April 2013 regime in order to secure the benefits of the old CFA system for their clients. Under the old CFA system the lawyer’s success fee was paid for by the losing party, from the client’s perspective the advantage is that no money is payable out of their much needed award of damages. In the rush to allow client’s to benefit in this way it may be that some of the usual rigorous screening was sacrificed in order to secure a CFA on the most favourable terms.
Delays in NHSLA Progressing Cases
1.18. We have already alluded to the reports we have received on the NHSLA delays in progressing cases. The NHSLA report that they have seen a huge influx of new cases and letters of claim in the post LASPO period as against the corresponding period in April 2012, the additional cases has meant that the NHSLA has to expend time to investigate the increased number of cases.
1.19. This has had a knock-on effect in the way in which the NHSLA are managing cases generally. Solicitors are reporting that some of their long running cases now appear to be suffering from a lack of activity as a result of insufficient instructions being forthcoming from NHSLA on progressing the claims. In turn, this has resulted in fewer cases settling as early as they ought to; round table meetings (RTM) are not as effective as they should be because the requisite authorities have not been granted and even after the round table meetings have concluded there has been a delay in the solicitors for the trust receiving final instructions on settlement.
1.20. The longer it takes a case to settle, the greater the costs incurred by the parties. The increase in costs alters the relationship between the costs incurred and the sums in issue. In turn, this raises concerns about proportionality and the associated issues referred to earlier in this response.
Reduction in Expert Fees
1.21. Apart from the reduction in scope of legal aid, one of the most significant effects of the post LASPO changes on access to justice relate to the reduction in the hourly rates payable to experts. Although this was a trend pre LASPO, the effects of LASPO, in particular the effects of the costs budgeting requirements has made it particularly difficult to run a case which is funded by legal aid. The difficulty is primarily due to the fact that the relevant experts (particularly obstetricians) will simply not work for the low hourly rate authorised by the Legal Aid Agency (LAA).
1.22. The cost budgeting requirements are such that lawyers must attend the hearings having identified the experts necessary to progress the case and the rates charged by the experts. This has caused serious difficulties for claimant lawyers representing client’s under legal aid.
1.23. Although LAA allowed an increase in the hourly rates payable to some key experts in neurological injury cases in December 2013 we are advised that many experts are still not prepared to work at the revised rates which remain considerably below the market rate.. In the case of obstetric experts the rate was not increased at all in December 2013.
1.24. The hourly rate allowed by legal aid for an obstetric expert based in London is £108 per hour, the average hourly rate charged by such experts is £200 per hour.
1.25. The LAA has indicated that the reason for the low rates was to depress the market rate so that expert’s rates would adjust and would come down generally. This has not happened. Part of the problem is that many experts do not consider it economically viable for them to work at a rate of less than £200/hour. It is also the case that it is only clients funded by legal aid that are subject to those restrictions. By comparison the NHSLA does not have the same restrictions on expert’s rates, neither do clients who are being represented under conditional fee agreements. The net result is a significant reduction in the numbers of experts such as obstetricians and quantum experts willing to undertake legal aid work and this is making it impossible for solicitors to progress cases.
1.26. There is no doubt that some of the most complex and serious cases are those involving neurological injury at or around the time of birth. It is also true to say that those cases are the ones which attract the highest award of damages. In order to put the situation in perspective we refer to the NHSLA’s analysis of the data following the 10 Years Of Maternity Claims (2012) Report. That report identifies that between 1.4.00 and 31.3.10, 0.01% of births during that period resulted in a claim, however the cost of those claims has been assessed as £3.1 billion.
1.27. By way of illustration of the disparity in the fees charged by experts and those allowed by legal aid, we have set out below a table of some of the experts typically instructed in an infant neurological injury case compared to the rate allowed on legal aid below.
Type Expert | LSC Rate 2012 | LAA Rate 02.12.13 (London) | Charge out Rate |
Neonatologists | £135 | £180 | £200/£260 |
Obstetrician | £140 | £108 | £200 |
Midwife | £90 | £72 | £135/£150 |
Care/OT | £68 | £54.40 | £110/£128 |
Housing/Surveyor | £50 | £40 | £190 |
1.28. Many solicitors have found it so difficult to find experts willing to work within legal aid rates that in effect it has become impossible for them to progress the case. As a result and following careful discussion with the client we are aware that in some cases solicitors have resorted to converting a client’s means of funding from legal aid to a conditional fee agreement. This means that clients may lose some of their damages to a success fee. When if the problems with non-competitive legal aid rates for experts’ fees were resolved, they could avoid that risk entirely. The adverse affect of this cannot be overstated, particularly when considering that the loss of damages in an award made to a brain injured claimant can be very significant in terms of being able to afford accommodation.
1.29. There now appears to be a situation where the LAA impasse on expert’s fees means that CFA’s are the only way of pursuing these cases. There are two points to be made about this evolving situation: first, it is fundamentally wrong that legal aid is on the face of it available but in practice is considered unworkable.
1.30. Secondly, we understand that the cases which have converted from legal aid funding to a CFA are ones where the substantive investigation was carried out before experts rates became such an issue. There is a real risk that the more recent cases falling within the current scope of legal aid will not be taken on because lawyers are unable to investigate them and assess their merits. These cases were left in scope precisely to avoid a situation occuring where infants with brain damage caused by negligence go unrepresented.
1.31. One of the profound difficulties with legal aid rates is the inability for solicitors to top up the rate. Many of our panel firms have said that were this to be allowed that they would find a way to make up the difference in the hourly rate allowed by the legal aid agency and that sought by the expert. Topping up in this way currently contravenes the legal aid agency rules and solicitors are therefore unable to do so.
1.32. It does occur to us that if solicitors and/or their clients are prepared to take the risk on topping up then there is no good reason why this should not be allowed. Approaching cases in this way does not increase the existing legal aid budget but it does enable claimants funded under legal aid to have parity with clients funded by way of a CFA to instruct experts on the same basis available to the NHSLA.
1.33. If the intention is to reduce experts hourly rates then there needs to be proper discussion with the relevant professional bodies such as the appropriate royal colleges. In addition if reduced hourly rates are to be imposed then those rates must apply to all relevant groups so a level playing field is maintained. It is both unfair and unworkable to seek to enforce reduced rates only against one group of claimants or potential claimants,
Effect of LASPO on Consumers
1.34. The full implications of entering into a CFA can be difficult for a potential claimant to understand. In particular, whilst there does appear to be a certain grasp of the fact that solicitors can recover their success fee from client’s damages albeit ringfenced at 25%, there does not generally appear to be the same appreciation of the effect of any shortfall in a solicitor’s hourly rate. In particular, that any shortfall can be recovered from the client’s damages and unlike the success fee, this is not ringfenced.
1.35. The AvMA helpline which is open to the public free of charge 5 days a week has seen an increasing number of calls from the public who have not been properly advised as to the structure and working of the conditional fee agreement.
1.36. On a more positive note we do recognise that some consumers are becoming more discerning and are tending to shop around to find a solicitor who will offer the best rate on the success fee. However, these consumers tend to have a greater degree of confidence. In our experience most members of the public do not feel that they have equality of bargaining power with solicitors and do not realise that the success fee and the hourly rate may be negotiable.
Less Advice Being Given
1.37. Many of our panel firms, particularly those outside of London used the Legal Help scheme to assist those eligible with navigating the complaints procedure, obtaining copies of medical records and some initial investigation into possible clinical negligence claims. With the restricted scope of legal aid, this is no longer possible and whilst firms are doing what they can to provide some assistance for most the level of information which can be imparted is very limited.
1.38. It also means that the public have to access the complaints procedure on their own. Many firms have to insist on people seeking to have claims investigated obtaining documents themselves and going through the complaints procedure before the firm will consider their claim. This is to enable the firm to risk assess the claim.
1.39. Without proper information to risk assess valid claims risk being turned down unless the case is very obvious. Vulnerable clients including those with mental health difficulties or weak communication skills are likely to be most disadvantaged. It is important to ensure that this class of claimant has access to justice.
1.40. For many people the hospital complaint procedure is difficult to follow and unclear; the provision of advocacy groups such as ICAS is very patchy and varies enormously from region to region; there is no consistent access to the complaints process across the country. The difficulty in accessing the complaint process may result in complaints not being brought when they ought to be, this translates into a missed opportunity for trusts as well as the individuals concerned.
2.1. The complex nature of neurological injuries arising at or around the time of birth mean that many claimants who are entitled to legal aid are still in the process of having their cases investigated and have not yet got to the point where proceedings need to be issued. It is also the case that as the current scope of legal aid affects infants many of those clients (acting through their litigation friend) will not need to issue proceedings for many years. Given the above circumstances, it is therefore very difficult to say what the identifiable trends in overall numbers of legally aided civil cases involving clinical negligence issues are since April 2013.
2.2. Our panel solicitors report to us that when applying for a legal aid certificate for a case involving a neurological injury of an infant they are not experiencing delays in the certificate being granted by LAA.
3.1. AvMA is not in a position to answer this question.
4.1. Having spoken to a number of our legal aid practitioners all of whom are accredited in the field of clinical negligence litigation there is a distinct sense that the profession is demoralised and frustrated by the unreasonable and severe curtailment in restrictions resulting from cuts to legal aid. In order to illustrate this further we refer to comments above particularly in relation to reduction in the hourly rate allowable for experts.
4.2. We would add that the work done by claimant lawyers in the field of clinical negligence has had a positive impact in ensuring that higher standards of health care have developed over the years. It has also ensured that some of the most vulnerable in society have been able to enforce their rights, it would be extremely detrimental if this commitment were to be lost.
5.1. AvMA operates not only a helpline but an Advice & Information department where people can write in seeking advice. As we are not a firm of solicitors we are only able to give general legal advice and not legal advice tailored to an individuals case, as such we can do little more than direct litigants in person to the relevant part of the CPR. We are also able to refer them to the Queens Bench Division’s Guide on Litigants in Person.
5.2. We have seen an increase in the number of people seeking to bring claims as litigants in persons (LiP). When we have reviewed the LiP’s papers we have identified that they have very little understanding of the legal test and the burden of proof in clinical negligence cases. Usually even the most basic facts such as the need for an independent medical expert opinion is not appreciated. Owing to the complexities of instructing a medical expert and the fact that medical experts generally do not take instructions from the public direct client’s appear to be embarking on litigation without the benefit of expert evidence. In turn this results in court time being wasted and increased costs to the opposing party as there is a greater likelihood of adjournments arising, this is not cost effective.
5.3. We recognise that courts tend to be more lenient with litigants in person but this does not on its own provide any cost protection to a litigant in person and this is often something which is not fully appreciated and/or understood.
5.4. As to what steps have been taken by the judiciary, we are aware of the guide for self-represented litigants produced by the Queens Bench Division in 2013, the Practice Guidance on MacKenzie Friends from 2010 and some of the guidance produced by the Citizens Advice Bureau. We are unable to state how effective those guides have been although we can say that litigants in person who come to us are usually unaware of their existence.
6.1. Solicitors on the AvMA Clinical Negligence Panel and who are experienced in this field have been using round table meetings (RTM) as a means of alternative dispute resolution for many years prior to the introduction to the new rules in April 2013. From that point of view there has been no increase in the use of RTM as a direct consequence of litigating in the post LASPO era.
6.2. Many solicitors would consider mediation in its strictest form if it were not so expensive. They report meeting resistance from the NHSLA on going to mediation usually citing the cost as a reason for not proceeding with it. As mediation does not guarantee settlement and does not necessarily explore the issues preventing settlement there is a reluctance to explore this route further particularly given the costs implications.
6.3. For many solicitors mediation is not appropriate until they have some reasonable idea of what quantum is likely to be. Some solicitors identify the possibility of mediation in circumstances where there may be a trial on a preliminary issue such as liability and causation, with quantum to be assessed at a later date. However, RTMs are already used in this way and have proven to be very successful. There appears to be little incentive to use mediation over RTMs because of the additional costs.
6.4. It is our view that mediation may well be appropriate to the low value claims but to be successful, parties would still need to go to mediation with their own independent medical evidence on the issues. We consider this to be a prerequisite on the basis that failure to have your own independent medical evidence could put a potential claimant at a severe disadvantage. The exception would be those cases where liability and causation have been or are likely to be admitted and where the only remaining issue is quantum.
6.5. It is accepted that quantum in lower value cases may be easier to assess than in the complex cases and the use of mediation in such cases is to be supported and encouraged. However, we also recognise that the same conclusions could be reached at round table meetings.
6.6. It is our experience that accredited solicitors do use RTMs in all cases where it is appropriate to do so. Generally mediation has not had a huge impact and has not plugged the gap left behind by the impact of the reduction in scope of legal aid.
6.7. Many of the solicitors we spoke to consider mediation to be a potential tool and one which could be used more than it is although the cost holds people back. Mediation is considered a particularly useful forum in cases where a significant injury or death has occurred but the value of the case is low, for example still birth cases, neo-natal death and elderly care.
7.1. Although we are aware of the existence of exceptional funding it is extremely difficult to get – we are not aware of any clients who have received exceptional funding and for all intents and purposes it largely appears to exist in name only.
April 2014
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