Without legal aid, thin air is all this man would have
19 April 1999
As MPs debate the Access to Justice Bill, Tom O'Sullivan and Claire Smith expose some of the cases that would never have reached to court without legal aid, and ask who exactly the proposed reforms are supposed to serve.
Kenneth Williams spent 32 years working in the choking dust of Thurcroft Colliery near Rotherham. He now finds every breath a struggle, needs constant attention and cannot go anywhere without special breathing equipment.
He needs two doses of steroids each day just to clear his air passages which are clogged with coal dust. He has 70 per cent damage to his lungs.
At 59 the bronchitis and emphysema which have ravaged his lungs mean that he cannot lead a normal life. He will never work again.
In January 1998 a court found his illness was directly linked to his years at the pit. In what became the longest personal injury case in British legal history, Williams and five other former miners won damages against their former employer, the British Coal Board.
The judge strongly criticised British Coal. It was found negligent in the operation of coal mines and for failing to ensure miners did not suffer through dust inhalation.
The legal aid-funded case was heralded as the tip of a very large iceberg, with as many as 65,000 other miners lining up to seek compensation for similar injury. Last month the Government agreed and struck a u1.5bn compensation deal to speed the process of the miners' claims.
Without the Williams case that would not have happened. But without legal aid there is a huge question mark over whether the miner's case would have ever seen the inside of a courtroom.
Williams received u25,000 - u7,000 in damages and the rest to cover future medical costs. His five former colleagues shared a further u80,000 for similar injuries.
Under legal aid reforms in the Access to Justice Bill - now in the House of Commons - it is unlikely that Kenneth Williams would have been able to bring a case against British Coal. All personal injury claims, with the exception of medical/clinical negligence, will be funded on a conditional fee basis in future.
And lawyers acting in the cases which have been unearthed by The Lawyer - including Williams' - say that they would not take them on a conditional fee basis because of the amount of cost, research and investigation involved.
In at least one case which has won legal aid funding - the abuse of people with learning difficulties in care homes - there are no legal precedents, and the lawyers believe that would mean that no firm would take it on a no win, no fee basis.
"There is no way I could've brought the action without legal aid," says Williams, "and then I would've been really stuck without the compensation to pay for my care when I get older.
"A couple of years ago they (his lawyers) told me the case costs were already about u88,000, and they must be much more than that by now. The money will make my life easier. Obviously I would rather have had my health, but at least this money means I can take things easy."
Sally Booth of Irwin Mitchell, who represented Williams, says: "Ken's case has set the schedule for this settlement between the Department of Trade and Industry and the miners. His judicial identification of the facts has led the way for all the others.
"The case was enormously expensive and there is no way it could have gone ahead without legal aid. Not only did it involve thousands of hours of preparation, relying heavily on expensive medical records, it also involved 102 days in court."
To Williams' name you can add the cases of June Hancock, Ben Smoldon, Daniel Burnett, Robert Fletcher, the residents of the Longcare residential homes in Buckinghamshire and hundreds of others who have benefited from access to legal aid for personal injury claims. But if they had been seeking legal aid after the law was changed, they may well have been forced to drop their cases.
The Lord Chancellor Lord Irvine has concentrated on dismissing concerns about the legal aid reforms as originating from the vested interests of solicitors.
As Bar Council public affairs spokesman Jon McLeod said last month (The Lawyer 15 March):
"Stories have been deliberately planted and set up to facilitate the passage of the Bill which will abolish legal aid in many public interest cases. Legal aid has been systematically vilified on the instructions of the Treasury."
But the people we feature on the these pages are not the 'rich bastard' lawyers who have been accused of having a vested interest.
They are ordinary people who, without legal aid, would not have been able to successfully seek compensation for injuries they suffered either accidentally or through neglect. Their suffering would effectively have been doubled.
As it stands, when the Bill becomes an Act in the summer, it will mean that if you are injured on the roads, playing rugby or allegedly through a drug which you had a bad reaction to, there is very little chance that you would be able to pursue such a case.
Such cases as those listed above do not lend themselves to cond-itional fee agreements because of high investigation costs, the complexity of the actions, or because of a lack of legal precedents.
Conditional fee agreements for personal injury cases were first introduced more than three years ago. Although there are no definitive figures available, it is believed that at least 75 per cent of cases still depend on legal aid.
Not surprisingly the faith shown by the Lord Chancellor's Department in the no win, no fee route for legal aid is not shared by many of those working in such personal injury cases. The Association of Personal Injury Lawyers says that the financial risk to lawyers will lead to fewer cases - often the most complex and merited - being accepted.
But it seems clear that Lord Irvine will not back down on the issue of ending legal aid for personal injury cases - which cost the public purse u37.1m last year.
The Lawyer believes he should, but as with the Law Society and Bar Council we realise that a Government with a majority of 178 doesn't have to back down on anything - not even when it is wrong.
An explanatory note attached to the Bill suggests that legal aid may be retained "where exceptionally high investigative costs or overall costs are likely to be necessary, or where issues of wider public interest are involved."
But this is discretionary, as is the hint from Irvine that he will have the power to intervene and allow certain cases to be legally aided.
At the very least this discretionary "note" should be enshrined in the Bill along with more concrete protections for those who stand to lose most from this "reform" - the disabled, the young, ethnic minorities and the elderly.
In the next fortnight a committee of 18 Members of Parliament will study the Access to Justice Bill line by line. It is the last chance to re-establish the right for personal injury cases to be supported by the legal aid system. The committee, which will have a Labour majority, is expected to open its investigation on 29 April.
This article will be sent to each of the MPs on the committee in the hope that the cases of Kenneth Williams and the others put a human face to, and underline, the real cost of legal aid "reform".