Terry Lee questions the serious implications of Lord Irvine's vision of a 'brave new world' for civil justice and the legal aid system, and deplores the effect it is likely to have on litigation. Terry Lee is a partner at Evill and Coleman.
The legal profession has responded with enormous concern to the Lord Chancellor's plans relating to civil justice and the review of legal aid.
The effects upon victims will be incalculable, as will the comfort that it generates in the offices of negligent defendants. No longer will they have the deterrent effect of litigation facing them because the whole aspect of litigation will, as a result of the proposals, be drastically altered.
While the Lord Chancellor is doubtless congratulating himself on the savings for the Treasury, little is being said about the damage, both financial and emotional, that will be suffered by victims, nor the complacency that will be enjoyed by negligent defendants who will be able to injure, or even kill, without fear of redress.
The Lord Chancellor's vision shows his apparent ignorance as to the consequences of the changes intended. He expects 'fat cat' lawyers to pay for the costs of investigations, and experts' reports and even insurance premiums. He demands that the legal profession 'wakes up to this brave new world' and lives in the reality of the modern age. In this world the legal adviser will at the time of the initial interview with a prospective client have to assess the chances of success and decide if a case should be taken on.
The legal adviser will face direct financial loss if the practitioner's judgement is ultimately found to be wrong. The proposals overlook the well-recognised uncertainty of litigation, both in the investigation of a case and at the trial itself.
Thus a practitioner can assess, prepare and present a case competently, and still lose because the judge concludes that the burden of proof is not satisfied. That, of course, is the purpose of a court hearing to decide where there is uncertainty not where there is certainty. It seems the Lord Chancellor only wants the cases where success is assured to be pursued .
I recently acted for a rugby player, Ben Smoldon, in a landmark case he brought against a referee. During a match my client, a young and gifted player, suffered a broken neck when the last of a series of collapsed scrums occurred, causing him to suffer catastrophic injuries which have left him confined to a wheelchair for the rest of his life.
The case was one where the outcome could in no way be described as a 'certainty'. It was the first case of its kind in the rugby world. Thus there was no prior case law or authority to which reference could be made. The case was ultimately successful and new law was, in effect, made. Further, the impact of the case has had profound repercussions within the world of rugby, and has directly led to improved safety in the game.
As a result of the success of the case other victims may have access to justice if they have been injured in similar circumstances. My client's case was funded by legal aid throughout; without this aid my client could not have pursued the case and would not have obtained redress.
In the brave new world that the Lord Chancellor envisages I can say with absolute certainty that I would not have taken on this case on a conditional fee arrangement. It was thanks to the existence of legal aid that the finances for this case were made available. It was those finances which funded the case up to trial and then beyond to the Court of Appeal, and in both courts the case was successful. The reality is that such cases could be pursued only with the financial resources of the Legal Aid Fund, because the victim will hardly ever be able to take on the financial clout of the defendants.
I, a successful (but not a 'fat cat') lawyer believed in the case and the Legal Aid Board provided the finances for my client to pursue the claim. If I had pursued this litigation using my firm's own financial resources and the action had failed then the cost to my practice would have been enormous. Is this really what the Lord Chancellor wants?
I never thought in my wildest dreams that this Government would set back Civil Litigation by 50 years in severely curtailing a victim's ability to attain justice, and to justify it by ill-informed and misleading comments maligning dedicated personal injury and medical negligence lawyers.
Presently, if a legal aid practitioner has a case that is unsuccessful, then he is punished already in legal aid cases by only being paid a proportion of his costs. Perhaps the Lord Chancellor considers that this punishment is not sufficient and that the solicitor should receive nothing for his efforts, if he commits the sin of losing.
In the future, where only 'certainty' cases can be pursued, the Ben Smoldon's of this world will never find redress or achieve access to justice.