Archive for October 2012
The Ministry of Justice has dropped proposals for a Supplementary Legal Aid Scheme, which would have applied in clinical negligence claims and would have seen legally-aided claimants pay 25% of general damages in to the legal aid fund.
Legal aid has been abolished for all clinical negligence claims with the exception of babies who suffer neurological injury during pregnancy, or at birth or during the first eight weeks of their life leaving them “severely disabled”. My research shows that only around 255 babies a year will qualify.
The abolition of legal aid took effect on 1 April 2013.
This change of plan means that unless a person falls within the very limited exception above they are likely to pay out around 35% or 40% of their damages, taking in to account the success fee and the after-the-event insurance premium, both now non-recoverable, except in relation to the costs of the ATE premium in relation to causation and liability reports – see The Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No. 2) Regulations 2013.
Due to the continued full force of Part 36, so-called after-the-event insurance is essential even in Qualified One Way Costs Shifting cases.
As this was by far the most obvious area for a Supplementary Legal Aid Scheme to be introduced, it appears that this concept is off of the agenda for the foreseeable future.
However, surely it’s time will come; a State Third Party Funding Scheme, whereby adverse costs are covered and client’s own disbursements are covered, in return for the State taking a share of the damages, would solve an enormous number of problems, and may even make a profit.
A non-means tested, self-financing State Legal Aid Contingency Fee Scheme, properly run, would be a sure fire winner.