From April 2013 changes to the law governing compensation claims under ‘No win, No fee’ court cases for personal injury and clinical negligence will mean successful claimants will have to pay up to 25 per cent of their compensation for pain, suffering and past losses in legal costs.
Kay Kelly, head of clinical negligence for law firm Lanyon Bowdler, said as well as the changes to ‘No win, No fee’ cases, legal aid was being stopped for most clinical negligence claims.
Shrewsbury based Mrs Kelly said: “The fundamental principle of compensation is that it restores the victim to the position they were in before the negligence.
“But now as much as 25 per cent, or, for example in a brain injury case, £100,000 of their compensation could be lost on legal costs which previously would have been paid by the negligent defendant.”
The new rules, part of the Legal Aid, Sentencing and Punishing of Offenders Act 2012, mean successful claimants can no longer reclaim expensive insurance premiums from the defendant if the claim is successful.
Although it is hoped that new products will become available, experts are concerned that the injured person may have to pay the premiums from their damages, or take the risk of losing and being ordered to pay their opponent’s legal bill.
Mrs Kelly said medical negligence cases often involved expensive investigative work with expert witnesses.
She added: “The effect of the changes is that ‘No win, No fee’ agreements will not be so accessible to an injured person whose claim is complex and difficult, even if they appear to have a reasonable case.
“But if they do get representation they are likely to have money deducted from their damages to pay towards their legal costs.
“From April 1, many potential claimants may not be able to investigate and pursue a case because of the higher risks and potential costs involved. I don’t think most people realise yet what’s happening.
“If they think they have been victims of negligence they should act now to start their claim before the rules change.”
Last month a Ministry of Justice spokesman said: “At more than £2 billion per year, we have one of the most expensive legal aid systems in the world, which in the current financial climate, we cannot continue to afford.”
But Mrs Kelly said those changes will affect some of the most vulnerable members of society and limit public access to justice. The state will continue to fund the legal costs of medical staff accused of negligence but not the victim; an uneven playing field.
She added: “At Lanyon Bowdler we have acted for many very serious legal aid cases in Shropshire and Herefordshire, including brain injuries, paralysis following surgery and delays in diagnosis of cancer.
From April many of these claimants would be unable to get legal aid despite having a low income; they are on a low income or benefits because of the injuries they have sustained!”
Yesterday a Ministry of Justice spokeswoman said she would not speculate on a predicted increase in court cases lodged before the April changes.
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