April 2013 brings with it the deadline for implication of litigation changes outlined by Lord Justice Jackson. It was also meant to bring with it the introduction of the supplementary legal aid scheme. The scheme was intended to cut the cost of our already wildly expensive legal aid system – one which has been dubbed one of the most generous in Europe. It was suggested this could be done by taking 25% of the general damages payout in each medical negligence case funded via the legal aid scheme. This would have been put back into the coffers to cover the cost of running the legal aid scheme under its current design.

However, the people who would have been most affected by this scheme were to be the parents of children who have suffered birth injuries leading to severe brain damage. This is due to the scope of clinical negligence cases covered by the legal aid scheme having been drastically slashed – ensuring only the most serious cases are publically funded. Quite clearly, these individuals desperately need the money from their payouts to cover the costs of caring for a child suffering from mental disabilities and it was outrageous to suggest that they should be the victims in a search for funding for cases of this kind.
Understandably then, the scheme was met with strong opposition. The Ministry of Justice made a U-turn at the end of September 2012, stating the scheme would no longer be going ahead this April. This was due to the work of many groups of campaigners who opposed the scheme referring to it as a “raid” on the compensation payouts for these families who need it most. The scheme was opposed by charities – such as Action Against Medical Accidents – and also by legal experts with the misguided scheme being seen as atrociously unfair.

The legal aid scheme is going to be cut, there just isn’t enough money to continue the way it is, but cuts cannot be made in places such as this, where the people the legal aid scheme is meant to help become its victims. Already the government has hugely reduced the amount of cases which can be funding via its scheme, and the Supplementary Legal Aid Scheme felt a lot like clutching at straws. Currently a large proportion of clinical negligence cases which are funded under legal aid take years to get to court and get the compensation the family deserve. The idea of the new scheme was to get the amount of people making “unnecessary” claims but in a system which is so slow moving, “unnecessary” claims are not a prominent concern. Overall then, it is obvious government’s U-turn on this matter is a sensible and welcome one.

Author: Nicholas Jervis