As litigation funding gets murkier, legal aid remains a beacon for families devastated by birth injuries
Lord Faulks QC, the Tory peer who quit as Minister of State of Justice after Liz Truss became the third consecutive non-lawyer to be appointed Lord Chancellor, flagged his concern in the Times yesterday about the potential conflict of interest imposed on a case by third-party litigation funding.
He quite rightly worries that the external financial pressure of having a civil case underpinned by private investors, such as a hedge fund, with a purely financial interest, can impact a client or lawyer's decision by exerting commercial pressure on, say, the point at which settlement is agreed.
Lord Faulks' solution is better transparency on funding agreements to be given to the judge and the defendant and proper licensing of potential funders via government agency, thereby imposing stricter restriction on who can get involved.
When he resigned in July 2016, Lord Faulks told the Times that he had "nothing against Ms Truss personally" but questioned whether someone without legal training would have the clout to stand up to a prime minister intent on imposing unpopular measures, particularly given her track record of voting in favour of legal aid cuts.
It's worth remembering that, despite restrictions since April 2013 for legal aid being available for clinical negligence claims, babies born with birth injuries such as cerebral palsy are still usually eligible for legal aid.
I say it's worth remembering because too many parents are put off starting litigation to provide desperately needed funds to ease the burden of bringing up a severely disabled child through the fear of unaffordable legal costs and therefore do not even begin the process. Add in concerns voiced in the press about the potential for commercial pressure from funders in their injured child's case, it's no wonder parents are sceptical about considering legal action.
This fear can also be compounded by a lack of understanding about this type of litigation, which is often inaccurately reported by the media. As the cerebral palsy charity cerebralpalsy.org.uk rightly explains, "it is a fundamental right that where a child is injured, they are entitled to recover compensation that should put them in a position they would have been in had they not suffered those injuries. This simply cannot be achieved. But compensation can at least provide some peace of mind to families that the child who has suffered injuries in consequence of someone else’s mistake will be able to afford the care they require for the rest of their life."
Understandably, there are certain criteria for receiving legal aid. The baby must have suffered a neurological injury resulting in severe physical or mental disability because of clinical negligence during the mother’s pregnancy, the child’s birth or the first eight weeks of the child’s life.
Any solicitor applying to the Legal Aid Agency for legal aid on behalf of a baby must also show that the case warrants investigation and that the likely outcome – i.e. the settlement - will be proportionate to the cost of bringing the case.
And in terms of supporting the continuing provision of legal aid, a lawyer who wins a compensation claim on behalf of a disabled child can then reimburse the government for the cost of the aid provided for fees.
Whatever the eventual outcome of yesterday's election, legal aid will likely come under further political scrutiny in the future. In the meantime, in cases of birth injury, it remains a vital lifeline in providing access to justice for parents who have suffered catastrophic tragedy.