It is with regret that I am writing this blog as it means that the government has chosen to ignore the negative response that it received to both the Jackson reforms and legal aid cuts and instead implement them in the Legal Aid, Sentencing and Punishment of Offenders Bill.
Despite recent support from three cost judges and non-stop campaigning from groups like the Consumer Justice Alliance (CJA) and Access to Justice Group (AJAG) as well as consumers themselves, the Bill was first presented to Parliament on 21 June.
With only a few concessions, the Bill lays out plans to implement the legal aid and civil litigation changes in full. This will mean massive funding cuts in legal aid, removing provision to pursue cases in areas such as clinical negligence, debt issues and divorce cases and will leave some of the most vulnerable without suitable access to justice. In a recent Law Society Gazette article, Linda Lee, President of the Law Society, said how the Bill, “amounted to an attack on the vulnerable and was fundamentally wrong”.
On the civil litigation side, the much-criticised Jackson reforms will remove the recoverability of success fees and After-the-Event (ATE) insurance premiums, therefore shifting legal costs on to the victim.
The AJAG response to the Bill highlights in its summary the reasons why these changes will “result in a major denial of access to justice for claimants”; a few of these are detailed below:
- No win, no fee claims are not the preserve of the wealthy - 53% of claimants earn less than £25,000 per year and only 18% over £40,000
- Almost 3 million people benefitted from this form of funding over the last 5 years
- Currently, success fees and ATE insurance provide important checks and balances, acting as a brake on unmeritorious cases
- Without recoverable ATE, risk aversion by claimants will mean many perfectly good but problematical cases will fall by the wayside
- The proposed 10% uplift in general damages would not compensate claimants for losing up to 25% by way of success fee
Similarly, the CJA in its response describes how the “government’s proposals would ultimately mean that many victims, entitled to rightful compensation, would be unable to obtain proper legal representation due to the financial constraints that the new system would create.”
The Bill’s fast-tracked nature is another cause for concern. The consultation paper closed in February this year, just six weeks later Ken Clarke stood in the House of Commons to announce that the civil litigation reforms would be implemented in full. Now, just two months further down the line, the Bill has been presented to Parliament and rushed through to its second reading in just 9 days.
The worry is that the mainly negative reactions to the proposed changes have been ignored and the impact on the public has not been properly assessed. Some have expressed ‘outrage’ at the speed and Nigel Muers-Raby, CJA Chairman, comments how the government is, “pushing through sweeping and dangerous reforms with alarming speed.”
He explains further that, “by publishing such a wide-ranging Bill, it is the controversial sentencing aspects that will grab the headlines. However, buried in the Bill, you can see that thousands of injured people will suffer as a result of what is being proposed – the door to justice is effectively being slammed in their faces.”
Now that the second reading has been completed and debates have opened up on referral fees and market viability for ATE insurance in clinical negligence cases, a more in-depth analysis is required. Check back soon for our next blog - The second reading.