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77 Medico-Legal J. 1 (2009)

handle is hein.journals/medlgjr77 and id is 1 raw text is: Medico-Legal Journal (2009) Vol. 77 Part 1, 1-2 © Medico-Legal Society 2009 Editorial: CFAs - Cash for Advocates? Dr Martin A Mansell MD FRCP You wanted justice but you got law Don Vito Corleone The Godfather The NHS Litigation Authority has recently submitted its views on conditional fee arrangements to Lord Justice Jackson's review of Civil Litigation costs (time sonline.co.uk/healthnews). They have received wide publicity, clearly feelings are running high on all sides and it is no surprise to find that the opinions divide along the usual partisan lines. CFAs were introduced in 1995 in an attempt to correct the injustice inherent in a litigation system that was open only to the very poor, who had access to Legal Aid, and the very rich. I remember the disquiet at that time amongst the mainly defendant lawyers who were unkeen about the introduction of this new-fangled American invention into the English legal system. It coincided with Lord Woolf's definition of proportionality; this seemed to me a rather strange idea, even then, that the access to liti- gation should be based solely on a prediction of the outcome balance sheet, rather than such a danger- ously liberal concept such as 'justice. An excellent Sunday Times article (22.03.09) tells me that the 1999 Access to Justice Act opened the CFA floodgates, when judges could order the losing side to pay the litigation costs in a case that had been fought all the way to the court. Those of you short of time can cease reading now because the conclusion of this Editorial should be evident. There appears to be a Government view that medical negligence litigation is a relatively small and unimportant section of Civil law which leads to an unwanted drain on NHS resources for little public benefit. Claimants' pursuit of money is seen as the primary motivation but this simplistic approach ignores other important reasons why patients go to law. These include the desire for an explanation of an adverse event, an apology and the hope that a similar outcome for another patient in the future can be prevented. Financial provision is understandably the prime mover in neonatal and other serious injuries where there is a significant loss of earnings and/or years of future dependency on others for care. The unfortunate juxtaposition of the current CFA debate with the events in Staffordshire provides a good example, if any more were needed, of present NHS failings. It took seven years for the Health Regulators to detect this blot on the medical landscape and that was only after Dr Foster highlighted the unexpect- edly high standardised mortality ratios at the Trust. As long as variable and uncertain standards of NHS care continue, despite the politicians' reassurances, a robust pack of claimant lawyers will still be required. The NHSLA paid out damages of around £260 million in 2007-2008, of which about half were the fees for claimant and defence lawyers. The no win- no fee arrangement may be the only way for a medical negligence case to be pursued and the uplift fees presumably reflect the costs incurred by the claimant side if the case is successfully defended. Such fees can, reportedly, be two to four times the usual level, with a top rate of £804.00/hr, although I suspect that this degree of rapacious trousering is relatively unusual and uplifts of as much as 100% are relatively unusual. A senior partner at Hempsons (Hello, Bertie) has referred to some cases as a buccaneering attack on the funds of the NHS; he allows that the CFA principle is correct but the acceptable level of payment has been set unreason- ably high. In true Darwinian or, rather, Lamarckian fashion some experienced claimant solicitors have become very good at spotting the claims which have a sound foundation and a good chance of successful litiga- tion. This is described, rather pejoratively, by the defendants as cherry picking and is clearly thought to be a bit unsporting. Presumably the rules origi- nally set by the Judiciary were somehow meant to help the plucky members of the Litigation Authority

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