As the dust settles on the cabinet reshuffle, and ministers pick up their new portfolios, perhaps it is time for the Government to take a good look at the myriad of competing legal reforms currently on the table and consider a more joined up approach?
I admit to being frustrated by the ‘pick n mix’ approach to legal reform. Which set of reforms do the government really believe in? In theory, the following mutually exclusive outcomes could all happen at the same time:
PI in or out of the small claims court? The Briggs report advocated not putting personal injury claims in the on-line small claims court. Meanwhile, the small claims reformers consider using an improved, upgraded portal to form an online small claims process, with a view to putting all PI claims up to £5k into it.
Fixed costs or no costs? The small claims limit for all personal injury claims could increase to £5k, meaning that there is no cost recovery for any personal injury cases worth up to £5k. However, the expected consultation on fixed costs in clinical negligence cases will be looking to introduce fixed fees for lower value cases. So where do we stand with a £4k clinical negligence claim?
Representation v litigants in person? The NHSLA are keen to explore whether clinical negligence work could be conducted by accredited lawyers as they see value in specialist representation. Meanwhile, the small claims reformers could put clinical negligence cases in the small claims court where the injured person is expected to fare well with no representation whatsoever.
If I could just ask for a bit of planning? We may see the consultation on the introduction of fixed fees in low value clinical negligence cases before the summer is out. Any fees agreed could then be completely unpicked by the small claims consultation. It is a big enough ask to expect lawyers to change their business models to cope with new fee structures and new approaches. We need to approach things carefully and in an orderly manner. These things take time, and at the very least, require some certainty that any changes will stick.
It is also a big ask to expect injured people to grit their teeth and pursue their claims on their own, or having to pay their lawyers out of their damages. Or to expect a vulnerable person, already bruised by the experience of being injured, to navigate an on-line IT system without support and advice. If we truly aim to build a modern legal system, let’s build it around their needs – representation and proper advice, care and support, and getting the right answer in the most efficient and stress-free way possible.
Maybe it’s time for a new minister to see the bigger picture.