by Roger Wicks, partner at Gadsby Wicks in Chelmsford

As the deadline approaches for responses to the Jackson review, many continue to ask why Lord Justice Jackson and those around him appear so keen to withhold justice from thousands of deserving people.

This point is nowhere more clearly highlighted than in clinical negligence. It is extremely worrying that clinical negligence litigation is viewed in a particularly negative light, and all the more curious that the cause of the problem is perceived to be the people who suffer negligent treatment and those who help them.

Jackson fails to understand how important it is that someone who may have suffered harm while, for example, undergoing an operation in an NHS hospital, should be entitled to seek effective legal redress.

There is a general misconception that clinical negligence claims are rampant and in need of regulation to curb excesses. The data shows that the opposite is true. Indeed, most people with valid clinical negligence claims do not sue, and clinical negligence claims have not increased since conditional fee agreements (CFAs) were introduced.

One proposal is that CFA success fees should cease to be recoverable from the losing party. With clinical negligence, this would have a profoundly negative impact on the claimant’s ability to access justice.

Nor will it deliver any of the proposed cost reductions the government so desperately seeks. The obvious alternative would be ‘no change’. No doubt this leaves one open to accusations of self interest.

Yet the simple fact is that the proposal will not reduce costs but instead move a significant part of them from a guilty defendant to an innocent claimant, thus creating an uneven playing field for claimants of modest means.

The proposal to cap success fees is also very concerning.

Solicitors would not be able to take on claims because the success fees received would be insufficient to cover the costs of unsuccessful cases. Because of the complexity of clinical negligence cases, most have uncertain prospects of success at the outset; so the withdrawal of recoverability will lead to solicitors only taking cases if the client has the funds to pay their own costs.

So what is the alternative? The role defendant lawyers play should be carefully considered. There are countless cases where the opportunity for realistic early settlements is presented but turned down.

If we are to overhaul the civil justice system, it is now more than ever that we need to see a change in behaviour. If, for example, there were, as there often can be, earlier admissions of liability, NHS lawyers would be able to settle medical negligence claims at minimal costs.

This is not a case of shifting blame or responsibility, but clearly identifying areas where change can be implemented without adversely affecting injured victims.

If the intention is to save money, perhaps we could look at the role of the NHS Litigation Authority (NHSLA). Based on the figures in Jackson’s report, there is a potential £22m saving for the NHSLA if recoverability is withdrawn, but that would be at the expense of denying access to justice for people with perfectly valid claims.

The way to make real savings is through a change in behaviour. For example, the NHSLA should, where appropriate, be encouraged to settle cases a lot quicker, thereby saving a significant proportion of the £120m paid annually to claimant solicitors and £42m to their own solicitors, as well as the additional cost of paying the higher-staged after-the-event insurance premiums.

Furthermore, the administrative cost of running the NHSLA is around £14m a year. It would be possible to save a significant sum by scaling back the day-to-day supervision of its own panel of specialist solicitors carried out by NHSLA case managers.

The legal profession is almost unanimous in believing that Jackson’s proposals represent a backward step. We should be proud of our legal system.

It ensures that any person can access the courts and take on any organisation, no matter how powerful, as long as their claim has merit.