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Lord McColl of Dulwich asked Her Majesty's Government:

The Lord Chancellor: The Government believe that most legal advisers give fair and objective opinions on the merits of cases to enable the Legal Aid Board to decide whether to grant legal aid in accordance with the existing statutory criteria. The Bar Council has laid down guidelines that Counsel must follow when providing their opinions. The Government intend however, when the legislative opportunity arises, to strengthen the merits test, so that applicants' lawyers commit themselves in their assessment of the case to specific prospects of success, expressed as percentages, on the information available to them. This will be subject to an over-riding principle that the Legal Aid Board should only be recommended to support litigation which individual litigants, properly advised, and not eligible for legal aid, would support out of their own resources.

Some cases, assessed initially as having particular prospects of success, lose at trial. This does not necessarily mean that the initial assessment of their chances was unduly optimistic. Nonetheless, the Government are concerned that applicants' legal advisers do sometimes give unrealistic advice. My plans to tighten the merits test and to monitor providers performances, as part of the legal aid reforms, will reduce this. In addition, I also plan to restrict representation in medical negligence cases to a panel of quality-assured providers.

Lord McColl of Dulwich asked Her Majesty's Government:

The Lord Chancellor: No. The role of the Legal Aid Board is not to adjudicate on the applicant's case, but to decide whether the applicant's case contains an issue of fact or law that is reasonable to submit to a court for decision.

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The Board does not, however, rely exclusively on the advice of the applicant's legal representative. It assesses the merits of the application against a range of criteria, which are set out in Section 7 of the Notes for Guidance in the Legal Aid Handbook (Sweet and Maxwell, ISBN 0-421-60810-2). An assessment is made both of the legal merits of the case (the prospects of success for the claim) and its reasonableness, which is a wide and general test which can take into account all the factors which would influence a private client considering taking proceedings. It will include an assessment of the likely cost of the claim against the likely benefit. Benefit need not be exclusively monetary; it will include considerations of the importance of the case to the client. Each area office employs lawyers, who will assess the more difficult cases.

In some circumstances, only a limited legal aid certificate will be granted, in order to establish more clearly the merits of the case. In a medical negligence case, for example, this may be to fund a medical report, and an opinion from counsel. The board may also, in exceptional circumstances, where a case is very complex and potentially very expensive, seek further information itself before making its decision on the merits, either in the form of commissioning its own legal or expert opinion on the case, or through inviting representations from the proposed opponent or third parties.

It is always open to the other side in a case to make representations to the board if it believes that the applicant's case lacks the merits required for legal aid to be granted. But the board alone remains responsible for the decision whether to grant legal aid, and the determining factor is ultimately the judgment of its own experienced staff. Legal Aid Act 1988: Section 17

Lord McColl of Dulwich asked Her Majesty's Government:

    Whether the operation of Section 17 of the Legal Aid Act 1988 encourages health service defendants to settle low-value unmeritorious claims to avoid irrecoverable legal costs.[HL3200]

The Lord Chancellor: The fact that assisted parties rarely have to pay costs if they lose can deter their opponents from pressing their cases fully, regardless of the nature of the assisted party's claim, its value, or its merits. However, the Government does not believe that removing assisted parties' protection from paying costs would be the right action to take. To do so would risk leaving assisted parties, who are among the poorest members of society, facing large debts that they would never be able to pay off, and could deter people from bringing important and meritorious cases. Nonetheless, I am considering ways of tightening the merits test, so that unmeritorious cases should not receive legal aid in future.

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Medical Negligence Claims and Legal Aid

Lord McColl of Dulwich asked Her Majesty's Government:

    What proportion of the 17 per cent. of successful legally aided medical negligence claims were settled for commercial reasons regardless of merit to avoid irrecoverable legal costs.[HL 3201]

The Lord Chancellor: The reasons why parties settle individual claims are entirely a matter for the parties.

Lord McColl of Dulwich asked Her Majesty's Government:

    With regard to the Government's proposal to limit legal aid contracts for civil legal aid in medical negligence cases to lawyers who have shown competence in this area (as denoted by membership of panels such as those maintained by the Law Society and Action for Victims of Medical Accidents), what is the evidence that lawyers who are members of such panels achieve better results than lawyers who are not members of the panels.[HL3206]

The Lord Chancellor: It is intrinsically probable that lawyers who are specialists in a specialist legal area will produce better outcomes. The lawyers who have gained accreditation to the panels operated either by the Law Society or the Association of Victims of Medical Accidents have demonstrated expertise in this area of law. In just the way that there are specialisms within medicine and patients are referred to those who demonstrate the relevant specialism, so too I believe that people in receipt of legal aid should similarly be directed towards those lawyers who have demonstrated specialism in litigating medical negligence cases.

Lord McColl of Dulwich asked Her Majesty's Government:

    With regard to their proposal to limit legal aid contracts for civil legal aid in medical negligence cases to lawyers who have shown competence in this area, how they envisage that this will address the problem of legal aid "blackmail", whereby unmeritorious claims are settled to avoid irrecoverable legal costs occasioned by the operation of Section 17 of the Legal Aid Act 1988.[HL3215]

The Lord Chancellor: In all areas of civil law I am considering ways of tightening the merits test, so that unmeritorious cases should not receive legal aid in future. The fact that assisted parties rarely have to pay costs if they lose can deter their opponents from pressing their cases fully, regardless of the nature of the assisted party's claim, its value, or its merits. However, the Government do not believe that removing assisted parties' protection from paying costs would be the right action to take. To do so would risk leaving assisted parties, who are among the poorest members of society, facing large debts that they would never be able to pay off, and could deter people from bringing important and meritorious cases.

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Lord McColl of Dulwich asked Her Majesty's Government:

    With regard to their proposal to limit legal aid contracts for civil legal aid in medical negligence cases to lawyers who have shown competence in this area, how they envisage that this will address the problem of unrealistically optimistic opinions provided by the applicant's lawyer who has a direct financial interest in advancing the case.[HL3216]

The Lord Chancellor: It is acknowledged to be very difficult in the early stages of a medical negligence case to identify the prospects of success. That is why the Legal Aid Board often limits a certificate to allow only the obtaining of a medical report and obtaining counsel's opinion on the prospects of success. A large part of the problem of high failure rates in medical negligence cases is caused by lawyers without sufficient experience of this area of law undertaking investigations in cases which ought to have been disposed of sooner, because they either lack the expertise to identify the important issues soon enough, or fully to understand the implications of a medical report or the contents of medical records in relation to the prospects of success. I believe that by limiting representation to those who are experienced in this field of litigation and who have contracts with the Legal Aid Board, we will ensure that cases are not taken either at all where the prospects of success are poor, or are taken no further than is absolutely necessary to establish what are the prospects of success. Further, where lawyers are consistently over-optimistic it will be possible to withdraw the contract that allows them to take these cases.


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