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In November 2008 Lord Justice Jackson was asked by the Labour Government to review how civil litigation was funded. The following autumn, Sir Ian Magee was brought in to shake up the legal aid scheme.
The result of the both the legal aid review and Lord Jackson’s review of Civil Litigation costs is the Legal Aid, Sentencing and Punishment of Offenders Bill. This Bill – often referred to as the Legal Aid Bill – has now reached Committee stage in the House of Lords.
It looks increasingly likely that it will become law.
No one would argue that things pre-Jackson, pre-Magee were perfect, but equally no one expected the net outcome would be that the Government would cut off funding at both ends.
Much has written about Part 1 of the Bill: worthy plans to curb claims for whiplash, proposals to limit prisoners’ rights and reduce the cost of legal aid to the public purse (which will incidentally remove funding from those who arguably need it most).
But what is quietly being squeezed under the radar is Part 2 of the Bill. Neither the Prime Minister nor the Justice Secretary mentioned Part 2 when they launched the Bill and the official Parliament website says only that it ‘makes various provisions in respect of civil litigation funding and costs, taking forward the recommendations of the Jackson Review and the Government’s response to that review’.
When made law, Part 2 of the Bill will limit available funding by reducing eligibility for legal aid and by removing essential elements of conditional fee agreements (CFAs) which for all practical purposes will make them redundant.
In summary it will severely reduce access to justice for all but the very rich.
The compromises reached in April 2000 which resulted in the recoverability of success fees in CFA cases was the key to financial viability – in effect making it financially possible for law firms to take on long-running civil cases.
Serving the interests of the powerful
Collins Solicitors successfully represented 18 victims and their families in the 11-year epic landmark personal injury group action against Corby Borough Council. The case was brought on behalf of children born with birth defects associated with the ingestion of toxic materials by their mothers during pregnancy on a no win, no fee basis. Without CFAs, incorporating recoverable success fees, to take the case on would have taken an irresponsible financial risk to take that I could not have justified to myself, my family or my firm.
The same is true following the Buncefield explosion. Six years on we are still arguing about costs, although following successful civil action and the petrol company Total being found guilty in the criminal courts in June 2010, the majority of payments to those affected have now been made. But again, without CFAs, incorporating recoverable success fees, the stakes would have been too high and the financial might of the oil giants would have made it impossible to justify taking on the case.
So we are left with a situation in which cutting off funding in this way will serve only to protect wealthy and powerful defendants.
Banks and insurance companies who mis-sell their products will no longer be subject to legal challenge; those injured by multinational media conglomerates will not be able to afford to take them to court to force a retraction and publication of the truth; no one will be able to challenge the Government in its decisions through Judicial Review and Civil suits against the NHS and the Police will all but be extinguished.
If the PIP breasts implants case, on which we are also acting, is set to be the first big test for the Jackson Review (and therefore in effect this new law) we will have to work hard to find a way to reduce our exposure to risk and to make this long running battle, which it is sure to be, viable.
The PIP case notwithstanding, once this Bill becomes law it will only be a matter of weeks before important cases fail to be heard owing to a lack of funding. Then there will be an outcry.
What we really need is an outcry now to stop this nonsense before it becomes law.