From the TUC

Bill to damage access to justice

18 Jul 2011, by in Working Life

The Government is to press ahead with the reforms to civil claims, including personal injury claims, which were proposed last year by Lord Justice Jackson. These proposals, contained in the Legal Aid, Sentencing and Punishment of Offenders Bill, will seriously damage access to justice for many working people.

While attention has focused on those sections of the bill dealing with Legal Aid and sentencing, other parts could also prove to be disastrous for those people seeking compensation because of an injury at work caused by the employers’ negligence.

Union members will be among the millions who are deprived of the ability to claim compensation, or who will lose damages.  As many as 25% of injury claims will not be brought.  Those that proceed might lose up to 25% of damages for the success fee and further substantial reductions for required legal expense insurance.

Background:

When legal aid was cut right back in 1999, mechanisms were put in place to ensure all reasonable legal costs could be claimed by the winning party, to protect access to justice especially for those on a low or modest income.  These included recoverable legal expense insurance premiums and union self insurance premiums and additional sums by way of a success fees.  This also meant successful injured claimants were able to keep in full their compensation from negligent defendants. The Government now intends to legislate so that these additional sums can no longer be recouped, seriously restricting access to justice, particularly for those on lower/middle incomes.

The parts of the Bill relating to these issues including Employers Liability cases are found in Clauses 41 to 44 and Clause 51. Other reforms to implement Jackson will require changes to the Civil Procedure Rules or other secondary legislation and will be the subject of a further consultation in due course.

Impact:

Many people will no longer be able to obtain representation, particularly for low value/complex cases. However although a claim of £3,000 or £4,000 may be considered to be low value by the Government, it is not low value to a cleaner who earns £6 an hour and represents four months wages. Even if representation can be obtained many on a low/middle income may decide not to claim, being unable to fund disbursements upfront or due to concerns about their costs risk. Those able to press on will face deductions from their damages. Unions and advice centres who presently provide free legal services to their members will often find this is no longer possible.

There will also be other effects. By reducing the threat of litigation in workplace accidents and diseases, health and safety at work will be undermined. The money taken from claimants and their representatives won’t benefit the treasury, but the big insurers will gain a windfall.

The alternative:

There is no need for such draconian action. There are clear alternatives which will protect access to justice while reducing costs. The streamlined claims process for Road Traffic Accident claims (which make up 75% of all PI cases) introduced last year already seems to be effectively reducing costs. The fixed success fees in place could be reviewed and potentially extended. Further steps could be taken to promote early admissions and avoid unnecessary disputes.