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67 Medico-Legal J. 1 (1999)

handle is hein.journals/medlgjr67 and id is 1 raw text is: Medico-Legal Journal (1999) Vol.67 Part 1, 1-2 D Medico-Legal Society 1999 Editorial: Access to Justice - Let them Eat Cake Diana Brahams Barrister, Gray ' Inn, London Access to Justice - the mission statement of New Labour - and it sounds good. But access to justice must be real not just a theoretical right. And for years, Legal Aid has provided tens of thousands of very poor people who suffered personal injuries, large and small as a result of an accident, real access to justice. But from October 1999 Legal Aid will be abolished for routine personal injury (PI) claims, leaving many impecunious, injured people with little or no chance of gaining compensation through the courts. So how will the Government's abolition of Legal Aid for PI claims increase access to justice for UK citizens? The answer says the Government lies in Conditional Fee Agreements(s) and the new simpli- fied court procedures introduced on 26 April 1999. Far better for every citizen to stand on his own two feet (never mind that he is on crutches) than have the state fund his legal claim for damages - anyway, isn't that rather a quaint socialist idea? Also a bit exclu- sive - because more than half UK citizens are not eli- gible... But will CFAs for routine PI claims ensure that access to justice is genuinely available to all UK cit- izens, irrespective or whether they are rich enough to hire the lawyers of their choice, or rich enough to pay insurance premiums? Lawyers will be content to take on claims with an uplift on their fees where the injury will attract substantial damages and/or where liabili- ty is admitted or where the evidence is very strong and there are very high chances of a settlement or a win at trial. The Government is changing the law to enable claimants to recover as part of their damages, premiums and uplifts on their fees, which will cost Defendants more if they do not settle claims sensibly and promptly. So, access to justice will be widely available to claimants (whether or not they would qualify for Legal Aid) because lawyers will take on their clients' litigation risks on a CFA basis. So we don't need Legal Aid, do we? Why should the State fund (or feather-bed) claims for poor, injured citizens when there are thousands of friendly neighbourhood solicitors to fund them instead? Market forces will ensure that only the strong and large cases go forward if lawyers' fees depend on a successful outcome. Fine. Or is it? Not for clients with small claims which are dis- puted and where settlement or an award of damages or costs are not a virtual certainty. After a few expen- sive mistakes, lawyers will become increasingly wary; they are unlikely to be tempted by the chance of a 100% up-lift on fees they may never recover at all. And less than ever if those fees are small. Lawyers, like plumbers, doctors and accountants, prefer to be paid for work they have actually done rather than on condition of success so that they can pay their gas and electricity bills, care for the chil- dren and go on holiday. So they will pick out the obvious winners and leave the rest with the result that many disputed claims for less than £15,000 will find no takers on a CFA. That is unsporting of course. Against the British tradition of backing the underdog. But to stay in business lawyers must cover their high overheads and yes, make a profit. The need to reduce their own risk exposure will affect their management of the claims - encourage early settlement whether or not this is at a low figure. It is hardly news that CFAs by their very nature create conflicts of interest between clients and their lawyers. The new Civil Practice Rules (CPR), in force from 26 April 1999, allocate small PI claims under £15,000 to the fast track. This limits costs recover- able to 25% of the damages recovered. Although not yet officially in force, the new CPR impliedly require compliance with the new pre-action protocols when proceedings are issued under the new regime. The 1

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