“Access for justice in clinical injury claims: Is there such a thing anymore?”

Sharon Allison is a partner and head of medical injury at Ashtons Legal, and chair of the Society for Clinical Injury Lawyers. In this guest post for Claims Media, she delves into the challenges facing access to justice in clinical injury claims and the implications of recent legal reforms on claimants’ ability to seek redress: 

“Since the introduction of the legal aid, sentencing and punishment of offenders act in 2012, it is fair to say the playing field has been made much harder for injured claimants. Law firms and third-party providers have adapted their approaches to maintain business as usual while ensuring access to justice. 

“However, that is not to say that there has not been collateral. With proportionality rules, firms have to be more selective about the cases that they are taking on. Already firms are aware of cases that they would have taken on in the past and won, but they are not taking them now for fear of unrecovered costs. 

“Consequently, this leads to more litigants in person. That in turn leads to increased costs of defending claims with a litigant who does not understand the process and defending unmeritorious claims.

“With the government’s current intention to impose fixed recoverable costs for clinical negligence claims, the landscape is poised to become even more complex and restrictive. Complex, because the government has little idea as to what the rules of the game are or should be. Hence a poorly drafted statutory instrument that requires amendment and clarification.

“However, worse still, it will be more restrictive than LASPO has been for access to justice in clinical injury claims. There will be a much wider pool of claimants who simply will not be able to find a lawyer to take on their case. The defendant will find themselves inundated with litigants in person with varying degrees of unmeritorious claims (which claimant firms currently screen at no cost to the taxpayer) and the under-resourced and overburdened court system will find themselves overwhelmed. 

“These measures seem redundant in light of LASPO. The court can manage costs through case management and budgeting. And it works! It is inconceivable that the government would look to place more restrictions on the ability to bring a claim rather than address the issue of prevention of injury in the first place.

“Additionally, the government’s focus on complexity overlooks the fact that clinical injury claims don’t necessarily equate to complexity. They are also overlooking the importance that claimant lawyer investigations into claims help uncover maternity scandals which continue to make headlines.

“Unless and until the government truly invests in our NHS and works to address prevention of the same mistakes, nothing changes. The same problems will happen at the same trusts, but just to a different family. Whilst you can narrow the funnel to prevent those injured claimants from getting through, but claimants are still being injured needlessly, and in my view, prevention of redress is not access to justice.”  

Image: Ashtons Legal  

Josie Geistfeld Josie is an editor for Claims Media. She welcomes feedback, comments, and opinion at josie.geistfeld@barkerbrooks.co.uk