Preserving access to justice. Shaun Pye reports on the Bar Council's efforts to safeguard the legal aid system
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Over Christmas 1984, Sally Murphy gave birth to a daughter, Danielle. There were complications with the delivery and Danielle was severely brain-damaged.
Murphy sued Wirral Health Authority and, while two expert witnesses said medical staff had been negligent, two said they had not. In 1995, Murphy won her case.
Last month, Murphy and Danielle were guests of Dan Brennan QC, vice-chairman of the Bar Council, at the unveiling of the Bar Council's response to the Government's legal aid reform plans.
Under the Government's proposals, Murphy's 50-50 case would quite simply have never come to court, says Brennan, as both Murphy and her partner are unemployed.
Last October, the Lord Chancellor, Lord Irvine, indicated that in addition to withdrawing legal aid from personal injury actions, cases with a less than 75 per cent chance of success would not be publicly funded.
It is not clear if this is still the Government stance, but the Bar Council response notes that although the Government's March consultation paper "does not repeat the proposal for a 75 per cent merits test, neither does it resile from it".
Brennan says there are potentially thousands of cases like Murphy's every year. So how is the Bar Council fighting its corner?
Its report accepts that the Government needs to get tough, but recommends the introduction of a "variable merits test". Plaintiffs who are simply trying to recover money would need a "good" chance of success (that is 60 to 80 per cent) as, it is argued, a privately funded case would probably settle if the chance of success were any lower than this.
For a raft of other actions - personal injury, medical negligence, judicial review in immigration cases - the report argues that a "reasonable" standard of 50 to 60 per cent should be employed. Special consideration should also be given to public interest cases - involving a novel point of law or where a citizen is challenging the state.
The report adds that more limited grants of legal aid should be made to allow the proper investigation of the merits of a case and that all cases funded by legal aid should have their merits continually re-evaluated throughout their history.
It argues that when evaluating the merits of a case solicitors, barristers and the Legal Aid Board would be required to conform to a fixed protocol of 22 questions to make the process simpler and more transparent.
Perhaps the most radical suggestion is that a black book be kept of those solicitors and barristers who continually over-estimate the likelihood of success. Persistent offenders should be "removed from the legal aid system", the report argues.
Brennan tells The Lawyer that of all the Bar Council's responses to the Government's legal reforms this is a "bloody good paper".
Chambers have reacted positively. John Taylor, senior clerk at leading personal injury set Old Square Chambers, says stricter monitoring of barristers' performance is fair enough: "If you're no good, you shouldn't be doing the work."
Vicki Chapman, head of policy at the Legal Action Group, says the paper has some "interesting ideas" and agrees that a fixed merits test across all cases is inappropriate. But she also warns against over-rigid protocols and the punishment of errant lawyers. "We don't want a system that is so rigid that there is no room for innovation."
At the press conference Brennan was happy to announce that Murphy had just been awarded damages in the region of £2m. It remains to be seen whether the Bar Council's attempts to safeguard the legal aid system which helped her will have a similarly positive ending.