Editorial

Many readers will be awaiting the outcome of the review of civil litigation costs by Lord Justice Jackson with keen interest. The interim report had little to say about clinical negligence specifically, but that did not prevent the Sunday Times and some other members of the Press having a field day with the information defence organizations had fed them. Many of us thought we had seen the end of the days when specialist lawyers, doing their best to help victims of clinical negligence access some form of justice, were referred to as ‘ambulance chasers’. Perhaps we have. The Sunday Times, no doubt encouraged with the ‘spin’ put on to the information they had been provided, went a step further. ‘Taking a knife to the NHS leeches’ read their editorial headline in March.

Thankfully, the issues are assured a much more sober and objective handling by the highly respected Lord Justice Jackson. Let me be clear, AvMA is a charity which represents the interest of patients and, in this context, Claimants – not one set of lawyers over another. We are no apologists for any lawyers who charge fees or apply for costs which cannot be properly justified. We approve even less of the practice, allowed by the ‘indemnity of principle’, of costs which have not been recouped by lawyers being taken out of Claimants' damages (except in the most exceptional circumstances). We do our best to help raise standards in the field of specialist representation for clinical negligence Claimants and we recognize that more needs to be done. We are open to change and new ideas which promote best practice and access to justice. However, the notion that Claimant lawyers solely are responsible for high and unnecessary costs is ludicrous. It is hugely disappointing to see this kind of misrepresentation being fuelled by people acting on behalf of the NHS. We thought we had arrived at a more mature understanding.

We have been provided with numerous examples of where huge costs have been unnecessarily incurred by the NHS purely because of the way that claims have been (mis)handled. Cases are often not robustly or independently investigated at an early stage, and admissions of liability are sometimes ridiculously late in coming. Of course, just as with the Claimant side, there are also many examples of good practice too! It is far too simplistic to simply compare the costs of Claimant lawyers to those of Defendant lawyers and say ‘gosh, they are really milking it’. The onus is on the Claimant to investigate and pursue the merits of a claim. This is hugely more challenging and costly than defending a claim. It is interesting that in the comparisons often quoted, no account is taken of the (not inconsiderable) cost of running the NHSLA or the use of in-house NHS clinicians and staff involved in dealing with these cases.

Perhaps the biggest culprit is the system itself. It is accepted by most stakeholders that No-win-no-fee ‘CFA's’ cost the NHS far more than if cases were settled under Legal Aid. It also opens the door to any non-specialist solicitor to bring a claim on a CFA. It is widely acknowledged that claims which have been assessed by a specialist solicitor on the AvMA or Law Society clinical negligence panels is more likely to have merit and to be represented efficiently. Why, then, is extension of access to legal aid for clinical negligence cases not even on the agenda?

It remains to be seen how radical the recommended reforms will be. Our sincere hope is that it is not access to justice which loses out. Isn't that what it's all meant to be about?