Compensation Culture’ in the Legal Aid, Sentencing and Punishment of Offenders Act 2012

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Bad policy and negligent law: tort and the ‘compensation culture’ in the Legal Aid, Sentencing and Punishment of Offenders Act 2012

Lauren E. O’Sullivan, PhD Student in Law Queens University, Belfast

The suspicion that people abuse the law and policy framework surrounding compensation claims for financial advancement, and have a predilection for suing on trivial grounds, has gained traction in recent decades; fuelling the belief that Britain is blighted by a US-style ‘compensation culture’. Societal stakeholders across the media, judiciary, academia and legislature are embroiled in the debate. However, while anecdotal evidence exists in abundance, statistical and case law evidence is equivocal. While successive governments have accepted that the ‘compensation culture’ is an ‘urban myth’, they continue to promulgate legislative reform premised on the assumption that it is real. This paper analyses the most recent legislative attempt to curb the culture, the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which universally affects tort claimants’ ability to access justice in the event of negligence. Arguing that its stated aims of streamlining the current civil justice system to achieve affordability obfuscates a contentious moral agenda, this paper contends that the Act deters meritorious and entitled claimants from asserting their rights and constitutes bad policy, forcing an unintended re- evaluation of what we consider fair and just in modern British society.

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Introduction

Man never legislates, but destinies and accidents, happening in all sorts of ways, legislate in all sorts of ways. Plato, 1892: 229.

While Plato may have been correct in contemplation of the legal norms of Ancient Greece, the same cannot be said about modern-day Britain. Here parliamentary men, and a few women, are only too happy to engage in the legislative endeavour and craft new policies which refine or supplant judge- made common law. Plato’s underlying argument, that legislatures are reactionary, modifying law and policy to reflect the perceived needs and desires of citizens and society, is persuasive and of particular relevance to this article, which will analyse the latest policy reaction in response to the belief that Britain is beset by a damaging ‘compensation culture’; the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (hereafter LASPO).

The law and policy framework surrounding claims for negligence has received a bad press. Tort is the umbrella sobriquet attached to cases concerned with civil wrongs and liabilities. It establishes the legal rights and obligations that individuals in a society owe to one another and is thus ‘an institution that is ... both formative and constitutive of its society’ (Thomas, 2013: 1). It is the realm of the law that ensures that if you are harmed by another person, through inter alia personal injury, traffic accident or medical mistake, you can seek legal redress. It is ‘wedded to the principle of returning the claimant to the position enjoyed before the injury took place insofar as it is possible to do so’ (Lewis, 2014: 223). A vast scholarship has sprouted regarding the nature or justification of torts law, with proponents of the ‘deterrence’ theory regarding torts as a system designed to reduce the frequency of civil wrongdoing; while ‘corrective justice’ advocates favour the explanation that tort is a legal process of making

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amends (Cane, 1999: 53). Such theories are predicated on the belief that compensation is the best medium of achieving these ends, and this is where tort runs into trouble.

The headlines are all too familiar: ‘Compensation crazy Brits’ whiplash injuries soar’ (Hickes, 2013), or ‘Police officer won £8000 payout for fleabites’ (McCarthy, 2013). The fear, or assumption, is that we have become a society which overly litigious and claim-happy. While ‘[i]n the US, the ambulance- chasing personal injury lawyer is a staple of press vilification and television caricature … in Britain the portrayal of personal injury lawyers isn’t quite as negative and all-pervasive, but the business of compensation is no less fraught. Ours is the country where we have a perceived “compensation culture”, a place bedevilled by meretricious claimants and money-grabbing lawyers’ (Spencer, 2014: 206).

The notion that people may abuse the law and policy framework for financial advancement, and have a predilection towards procuring compensation through advancing trivial or specious claims, has gained traction in recent decades. Societal stakeholders ranging across the media, judiciary, academia and legislature are embroiled in the debate, such that the existence of such a culture is now presented as incontestable. However, while anecdotal evidence exists in abundance, this claim is not borne out by either statistics or case law. And while successive government reports have demonstrated that the notion of the ‘compensation culture’ is an ‘urban myth’ (BRTF, 2004) a fact which said governments have largely accepted, they continue to promulgate a reform agenda which legislates as though the notion were real rather than a miscommunicated public perception. They do so under the assumption that while ‘the compensation culture is a myth; the cost of this belief is very real’ (BRTF, 2004).

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This article will briefly examine the ‘compensation culture’ debate before turning to analysis of LASPO, which curtails negligence claimants’ access to legal aid and alters other funding mechanisms including ‘no-win-no-fee’ Conditional Fee Arrangements (hereafter CFAs). Arguing that its stated aims of streamlining the current civil justice system to achieve affordability obfuscates a contentious moral agenda, this paper contends that the Act deters meritorious and entitled claimants from asserting their rights and constitutes bad policy, forcing an unintended re-evaluation of what we consider fair and just in modern British society.

1. The ‘compensation culture’ debate ‘Compensation culture’ is a ‘catch-all’ (Lewis, 2014: 210), ‘amorphous term used to encapsulate a number of different though related complaints’ (Morris, 2007: 350). It is used in at least five ways: ‘First, it may indicate that too many lawsuits are being commenced. Secondly, [it] may refer to a society in which damages awards are frequently excessive ... Thirdly, [it] may mean that a substantial number of claims are fraudulent. Fourthly, [it] may refer to an undesirable readiness of sections of the public … to seek legal redress of their grievances. Fifthly, [it] may be a society in which legal redress for injuries is too readily available’ (Goudkamp, 2012: 16).

Originating in the USA, it reached Britain via her newspapers’ plagiarism of the term in an article in The Times (Levin, 1993), which theorised that Britain had become a nation of work-shy ‘layabouts’. The article’s polemical and moralistic tone is a good indicator of the way in which the debate would progress: ‘The received wisdom [is] that we are awash with spurious claim[s]. We’re brainwashed into thinking that our society is crippled by manipulative scroungers on the make, by professional victims who think nothing of wildly exaggerating their injuries – if they even suffered any in the first place. We, the taxpayer, are told that we pay for the unscrupulousness of the bad apples … our moral fibre is corroded, we can’t trust anyone’ (Spencer, 2014: 226).

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The assumed outcome of a society ‘bent on litigation’ is a ‘host of bads’ (Hand, 2010: 571) ranging from increased insurance premiums, inefficiency of the legal system due to unmeritorious claims, fragmentation of society and national identity and excessive risk aversion, whereby people are less inclined to partake of socially beneficial activities for fear of litigation (Williams, 2006: 348). There are financial costs associated with a ‘compensation culture’, but also, arguably greater, non-economic costs: ‘the non-financial cost of a compensation culture is just that - a change in culture. We might move from a country renowned for its ‘stiff upper lip’, where misfortune is greeted with gritty stoicism, to a country where every mishap leads to a complaint … a potential consequence of the compensation culture is that the rich tapestry of life gets dumbed down and reduced to humourless interactions’ (Marshall, 2013: 81).

The blame for this perceived crisis is levelled squarely at the feet of ‘have-a-go’ (BRTF, 2004: 3) claimants, particularly the ‘malingering’ (Spencer, 2014: 241) lower classes; the ‘fat-cat’ (Genn, 2013: 241) lawyers and the judiciary, who have allegedly expanded the common law, leading Lord Steyn to remark that ‘claims that would have been unheard of thirty years ago are now entertained’ (House of Lords, 2004). The corollary of this is that negligence law is increasingly now viewed in many quarters as ‘a tort monster which must be tamed’ (Rustad & Koenig, 2002: 1).

However, evidence as to the existence of a ‘compensation culture’ is equivocal. Tort law is predominantly judge-made; most of its central principles ‘are found in the law reports rather than in the statute books’ (Goudkamp, 2012: 4). Thus any expansion of the negligence doctrine is directly attributable to judges. That the advent of the 20th century witnessed an unrivalled evolution of the scope of negligence can brook no argument and judges are now bestowed with broad discretion in determining negligence. They have admittedly done so in a wide

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array of situations (Harlow, 2005: 56); representing a very advanced stage in the development of the law, ‘which not everyone would regard as “progress”’ (Deakin et al., 2013: 9). However, this evolution has not been untrammelled. Recent decades have witnessed unprecedented judicial grappling with the concept of negligence, and its interaction with principles of fairness and justice. There has been an attempt to establish and enshrine a balanced and nuanced approach, recognising that ‘[t]he law of tort must not interfere with activities just because they carry some risk ... [and] must not stamp out socially desirable activities’ (EWCA, 2010).

Due to the conflation of different notions delineated above, academics use a combination of case law and statistical evidence in their analyses. Quantitative data is difficult to compile and more difficult to compare, with different researchers using different methodologies, different sources, different norms and baselines and different timeframes to allegedly answer the same questions (Williams, 2005: 504). This allows academics from both emerging schools of thought (crudely, with one school asserting that a 'compensation culture' exists, and another asserting the opposite) to manipulate statistics and claim victory. In a ‘classic case of lies, damned lies and statistics, the data can be interpreted in more than one way to suit more than one argument’ (Morris, 2011: 85). This has allowed for statistical contraindications between various stakeholders and even amongst concurrent governmental committees (ibid.: 86).

What is clear from academic tracts is that the propensity to claim and total amount of compensation awarded in negligence has dramatically increased over the last four decades (Lewis, 2014: 211). However it is equally clear that the number of successful claims in negligence are a minute number in comparison to the number of ‘adverse events’ (accidents) which occur each year (Morris, 2011: 86). There has been little attempt to discern why an increase in claims is necessarily a bad thing. The suggestion that the concept of a ‘compensation

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culture’ can therefore be adduced by statistics is misguided: ‘just because the number of claims has increased significantly does not necessarily mean that there is [or is not] a problem. Whether a problem exists depends on individual political views on risk, responsibility, resource allocation’ (Morris, 2011: 84). It is not as simple as suggesting that left- or right-wing political views will determine one’s perception either; successive governments of both political hues continue to address the ‘compensation culture’. This reminds us that the debate has little to do with pure law or statistical interpretations; rather it requires moral judgement on the ethical ramifications of claiming. It further highlights that this has been a hotly contested political and politicised debate.

2. LASPO: context and effects Despite its criticism of the previous policy framework (Herbert, 2006: 41), the current government’s aim to tackle the 'compensation culture' is with the enactment of LASPO. This ‘leviathan’1 statute traverses the divide between criminal and civil law. The publication of the Bill resulted in an unprecedented five thousand responses from various stakeholders, over 90% of whom were fundamentally opposed to the proposals. Thus while the government have stated that it constitutes a ‘balanced and sensible package’, it is fair to assert that it did ‘not receive a good reception of either side of the Houses of Commons’ and resulted in ‘emotive and emotional’ (HL Deb, 2011–2012) debates from elected representatives and peers. While the more salacious aspects of the Act, including the decision to criminalise squatting in residential property and to remove vast swathes of the law, such as housing, family and immigration from the remit of legal aid attracted considerable controversy and coverage, the legislative provisions pertaining to the tort of negligence received comparatively little attention prior to enactment. Furthermore, there is a dearth of research in the academic press (Lewis, 2011: 272).

1 Much of this article refers to Hansard records, which, for reasons of space, have not been referenced here. Any unreferenced quotations can be found within the Hansard archives.

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Deficit reduction has always been the chief policy aim of the coalition government. It was little surprise when the first tranche of cuts were announced just four days after they took office. Proposed reductions included £325 million from the Ministry of Justice (Collins, 2010), a figure later ratcheted up to in excess of £2 billion, or 23% of the Ministry’s budget, by 2015. Little indication was given at this stage as to the form of the reduction, though astute politicos may have wondered at the pledge to ‘carry out a fundamental review of Legal Aid’ (Cabinet Office, 2010).

The seismic statutory changes bestowed on the tort of negligence since the nascence of the coalition were ostensibly borne of this ‘unignorable problem of affordability’ and based on the policy objective of achieving ‘access to justice at proportionate cost’ (Jackson, 2010) while ‘lick[ing] the demons of high costs in civil litigation’ (Kritzer, 2009: 344). It was to be realised via a ‘two-pronged attack’ (HC Deb, 2011–2012) on legal aid and civil litigation funding. However, it is arguable that underlying this quest for economic efficiency belies a more tacit policy: eradication of the ‘compensation culture’.

2.1. Legal Aid Legal Aid was established in 1949 with ‘a laudable aim: to provide equality of access and the right to representation before the law’ (Ministry of Justice, 2010). It is part of the social compact between citizen and state: ‘Legal aid is a service which the modern State owes to its citizens as a matter of principle … Just as the modern State tries to protect the poorer classes against the common dangers of life … so should it protect them when legal difficulties arise … the law is made for the protection of all citizens, rich and poor alike’ (Cohn, 1943:253). Spiralling costs have ensured that legal aid ‘has always had a troubled history’ (Flood & Whyte, 2006: 80) and remains the ‘most friendless wing of the welfare state’ (Lewis, 2011: 273). Often used as a political pawn, Goriely (1996: 215) asserts that the state, the courts and lawyers ‘as deliverers and

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interpreters of legal aid have at various times promoted it, defended it and decried it’.

When inaugurated, approximately 80% of the population was eligible for civil legal aid. By 2007, that figure had dropped to 29% (Jackson, 2010). Yet despite this drop in eligibility, spending on legal aid continued to rise such that it exceeded £2 billion in 2004 (Flood & Whyte, 2006: 83). Expenditure on legal aid per capita was far in excess of any other country, and 17 times that of the

US (ibid.). It was stated that ‘legal aid must play its part in … reducing the fiscal deficit’ (Ministry of Justice, 2010: 3) and argued that the wide scope for the provision of legal aid ‘encouraged people to bring their problems before the courts too readily’ leading to the ‘availability of taxpayer funding for unnecessary litigation’ (ibid.). To counter this, then Minister for Justice Kenneth Clarke proposed the removal of entire legal swathes from its remit, including torts, as ‘these claims are generally not of high importance’ and ‘the litigants are not likely to be particularly vulnerable’ (ibid.). With most negligence cases, particularly personal injury, already precluded from Legal Aid for a decade, the axe would fall upon the last remaining negligence category to attract legal aid: clinical negligence.

The chief reason for this decision was couched in purely economic terms: the Ministry had its budget cut by 23%, and legal aid comprised a quarter of its annual budget. Of the £350 million annual savings the government hoped to realise from its proposed reform of legal aid, by far the largest tranche of savings (£279 million) would come from changes to scope. Almost half a million cases falling within the then scope would be held to fall out of scope post-LASPO. Yet out of an annual legal aid bill of £2.2 billion, clinical negligence accounted for approximately £17 million, or less than 1% (HC Deb, 2010–2011). According to NHS figures for 2010–11, 82% of clinical negligence cases, where the funding method was ascertainable, were funded by

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means other than legal aid. It is thus arguable that negligence had a negligible impact on the legal aid budget.

The government were steadfast that they should be the ‘funder of last resort’ (Ministry of Justice, 2010: 4). They justified removing clinical negligence from legal aid eligibility because of the availability of alternative sources of funding, primarily through CFAs. However, many clinical negligence cases, particularly involving obstetrics, involve high disbursement levels due to the high costs of expert medical reports and hence find it difficult to secure funding under a CFA (Goldberg, 2012: 137). Lawyers are understandably loathe to take the risk of losing such cases and being denied the recuperation of costs for these reports, a fact which the government acknowledged (Ministry of Justice, 2010: 4).

Although economic justifications were clearly delineated, it is clear that there was also a moral dimension to these decisions. That ‘an individual’s personal choices’ (ibid.) and the extent to which these have impacted on the legal issue would be taken into account in deciding on legal aid funding, injects moral relativism into the legal process, as does the contention that ‘where clients are primarily seeking monetary compensation this will not generally be of sufficient importance to merit public funding’ (ibid.).

Proposals to cut legal aid in Part 1 of the Act were greeted with obloquy from bipartisan parliamentary committees; the press traversing political divides, academia and the judiciary (Hale, 2011). After a stormy passage through both Houses of Parliament, and immediately prior to the final vote, the government performed a volte-face on the blanket exemption of clinical negligence claimants, making one concession: in obstetrics cases, legal aid will remain available for damage caused by neurological injury to a baby resulting in severe disability. In order to qualify, the damage must have been caused either in utero or during or after birth up to a maximum of eight weeks post-partum. There

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will be no qualification where injuries inflicted are either outside this time frame or pertain to solely physical damage.

While the decision to retain funding for these cases is welcome, the eight-week limitation period is arbitrary and not based on medical requirement. The practical impact of this provision is that a baby who sustains neonatal brain injury between conception and up to eight weeks after their birth will be entitled to bring a claim against a negligent practitioner or healthcare trust with the support of legal aid; whilst a child who sustains identical injuries at the age of nine weeks old will not (HL Deb, 2011–2012). Despite extensive enjoinders, the government refused to alter the provision in any other respect.

Occasionally, legal aid will be available under the new Exceptional Case Funding scheme. This ‘ensures that some clinical negligence cases will continue to receive legal aid if the failure to do so is likely to result in a breach of an individual's rights under the Human Rights Act 1998 or EU Law’. The government acknowledged that this sets a high threshold with extremely narrow parameters. They contend that this hurdle can be crossed where funding is in the 'wider public interest' (HL Deb, 2011–2012) but there is no attempt to stipulate what will be required to satisfy this test. Though designed as an ‘important safety net’ to provide funding for cases which would otherwise be unable to proceed, the test is susceptible to the charge of legal uncertainty; there is no outline of how arbiters evaluate the application. In reality, latest figures show that out of 1,520 applications for funding under this scheme in 2013-14, only 69 were successful, and none of these were for clinical negligence (Ministry of Justice, 2014). As a result of LASPO, the overall number of clinical negligence claims attracting legal aid has fallen from 6,884 in 2010-11 to 1,146 in 2013-14 (ibid.).

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2.2. Civil funding costs Based wholly on Lord Justice Sir Rupert Jackson’s magnum opus, Review of Civil Litigation Costs (Jackson, 2010), Part 2 of LASPO promulgated an overhaul of the civil costs regime. It constituted the third time in 25 years that ‘the costs of civil justice were at the centre of English judicial reform’ (Kritzer, 2009: 345).

Major recommendations included, inter alia, altering CFAs so that success fees, in which a victorious claimant lawyer could claim their full fees plus an additional amount of up to 100% of their base costs from the losing defendant party, and After the Event (ATE) insurance costs, would cease to be recoverable from losing defendants. Instead such costs ‘will be borne by the client, not the opponent’ (Jackson, 2010). In plain terms, claimants would be expected to settle these costs from any damages awarded; thus alleviating the encumbrance of defendants, ‘who often have to bear a disproportionate costs burden’ (ibid.).

Other posited reforms included a ban on referral fees in respect of personal injury cases, (ibid.) in which insurers and Claims Management Companies would refer cases to solicitors for a fee. The coalition wholeheartedly endorsed the tendered Jackson proposals (McIvor, 2011: 411), which were transposed into law in Part 2 of LASPO and combined to have the chilling effect of disincentivising claims. Importantly though, the reasons for this inclusion could not be said to be economic; as most cases of this type are litigated between private parties, the government stood to save no money through this enactment.

3. Intended and unintended consequences: an evaluation of LASPO UK Governments of all political hues ‘are prone to respond to law and order “crises” with ill-thought out campaigns which are then implemented with few changes in resources’ (Flood & Whyte, 2006: 89). The Act is 'draconian' and

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though ostensibly implemented with cost-saving objectives, it is clear, especially in relation to Part 2 which incurs no governmental expenditure, that this is only part of the story. In fact, the stated agenda obviates the true policy objectives of the Act: to curb the compensation culture, to disincentivise claims through cutting off or fundamentally altering access to funding regimes and to ameliorate political capital by legislating on a popular and populist theme.

Despite the publication of the Conservative-commissioned Young Report in 2010 (Young, 2010), which maintained, in concurrence with previous reports, that the ‘compensation culture’ was mere conjecture, it is clear that a vocal contingent of elected representatives believe that it ‘is intuitive and self-evident that there is a compensation culture’ (HC Deb, 2011–2012) Thus, the government continue to legislate for this perception: ‘the clear goals of our reform are to discourage unnecessary and adversarial litigation at public expense … we have made it clear from the outset that cultural and therefore behavioural change is one of the key objectives of this reform’ (LASPO, Public Bill Committee Debate (2010 – 2011).

In doing so, they attach blame to legally aided claimants and those using CFAs, who are ‘held up as the villains and the wasters of public money’ (ibid.). There has been a legislative scapegoating of victims, with the result that ‘it as difficult as possible for an injured person to secure compensation for their injuries’ (HL Deb, 2011–2012). In the ‘zeal to fix the so-called compensation culture ... the [Act] runs the risk of undermining access to justice’ (HC Deb 2010–2011). It has resulted in an irrational and disproportionate 'topsy-turvy perverse set of outcomes' and important unintended consequences, calling our ethics and democracy into question.

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3.1. Access to justice The key issue is the ‘deleterious impact which these changes will have on victims of personal injury and on claimants of modest means’ (HL Deb, 2011– 2012). United States Supreme Court Justice Brennan, speaking in 1956, evocatively argued that: ‘nothing rankles more in the human heart than a brooding sense of injustice … When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the existence of free democracy is not imaginary but very real’ (Nash , 2013:105).

Nash (2013) contends that as human and social rights awareness has increased since the Second World War, new social contracts were forged ‘guaranteeing the equitable distribution of, and access to, justice to citizens’ (p. 105). This forced legislatures to take an active role in promoting access to justice: ‘ensuring fair and equitable access to justice institutions [was] seen as not simply an idealistic aim of the State but a fundamental requirement’ (ibid.); a ‘necessary condition for a democratic society’ (Flood & Whyte, 2006: 85).

LASPO will curtail access to justice for negligence claimants in myriad ways. Changes to legal aid qualification means that not merely legal representation, but all forms of legal advice, including that provided by Citizens Advice Bureaux and Law Centres, will now be presumptively statutorily denied to negligence claimants. There will be no facility to ask about the viability of claiming without incurring fees. This will likely discourage those who are unsure or fearful of the legal process from enforcing their rights. It will give rise to ‘advice deserts’ in which ordinary citizens are denied basic information about the workings of their legal system and their options for rights enforcement.

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While some of these cases will find succour through the revised CFA scheme under Part 2 of the Act, the corollary of the changes therein is that ‘lawyers will be less disposed to take cases with a significant degree of risk’ (HL Deb, 2011– 2012). Many examples of cases in which claimants were refused a CFA as their case was deemed too risky; but which succeeded with the support of legal aid exist. Furthermore, contrary to the implied assertions that legal aid lawyers were more likely to pursue specious claims, the success rate of clinical negligence cases litigated with legal aid funding was exceptional, standing at 91% by 2011. LASPO has created a considerable funding vortex, and there is a high probability ‘that meritorious cases – even those with a good chance of success – [are] not able to get into court simply because the cost of investigating them is too high’. For some, legal aid ‘is the only sword and shield in their armoury’ (HC Deb, 2010–2011).

It is incontrovertible that equality of arms, a bedrock principle of access to justice, is unachievable under this Act. While the NHS, the primary defendant in clinical negligence, have guaranteed access to advice and representation through their own in-house legal team, the NHS Litigation Authority (NHSLA), claimants who fail to secure funding through legal aid or CFAs will be faced with the stark options of either not bringing the claim, privately funding the case or litigating in-person. As Lord Gresford asked rhetorically from the floor: ‘how can you have equality of arms when you have litigants-in-person, versus fully qualified and experienced NHS lawyers?’

The chaos which litigants-in-person (LIPs) ‘invariably – and wholly understandably – manage to create in putting forward their claims and defences’ is problematic, requiring judges to ‘micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved’. The spectre of an avalanche of LIPs prompted research into the prospective demographics of those who would choose to pursue claims without legal advice or

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representation and found that they were likely to be younger individuals on lower incomes, reliant on welfare benefits as their main source of income and predominantly male (Bevan, 2013: 44). They were unlikely to have financial gain as their sole motivation (ibid.: 45), and a ‘significant minority’ (Moorhead & Sefton, 2005) exhibit vulnerability factors. Research shows that optimum outcomes are not achieved when parties are unrepresented, due to a combination of factors including LIPs feeling intimidated by the court (Bevan, 2013: 49). LIPs may have knock-on costs on the civil justice system, with endemic delay and confusion manifesting in a ‘clogging up of the courts’ (Wagner, 2011). As one wry judge commented: ‘good lawyers cost money, they also save it’ (Pendlebury-Cox, 2012). After all, ‘only a fool has himself for a lawyer’.

Although one need not go so far as then Shadow Lord Chancellor, Sadiq Khan, who asserted that the proposed changes in Parts 1 and 2 of the Act were tantamount to the 'economic cleansing of the civil courts' (HC Deb, 2010– 2011), the provision of access to justice, ‘which a hopeless romantic [may] regard as a fundamental part of what it means to be British’ (HL Deb, 2011– 2012), is intrinsically linked with national identity and speaks of the type of society we want to be (Higgins, 2012). The Act resurrects the barrier between civil rights and their remedies and represents an assault ‘on a key building block in the overall edifice of citizenship’. It is arguable that ‘lack of convincing access is a spur to social fragmentation, alienation, instability and worse’ and that average citizens must be assured of access to the justice system ‘or he becomes disenfranchised from society’. It is submitted that the enshrined changes wrought by LASPO will preclude many claimants from enforcing their rights.

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4. An ethical policy? One of the most damning features of the Act was the government’s ‘unconscionable’ decision to alter the level of damages a claimant could potentially receive. The Act fails to acknowledge that ‘compensation payouts are not lottery wins. They are calculated in great detail in an attempt to normalise lives and provide care costs’. Damage formulations are ‘forensically calculated’; there is no profit element to them. Further, the quantum of damages awarded in this jurisdiction is comparatively very low. For example, in mesothelioma cases the average compensation awarded in the UK is £65,000, while in the USA it is $7.5 million. Let us not forget: damages are only awarded where a claim in negligence is successful. Placing greater financial burdens on winning claimants hitherto treated as entitled to restitution for their loss and damage targets the wrong people and is fairly attributed the moniker ‘a tax on damages’.

It is included solely as a means of curbing the ‘compensation culture’. It will not save the government any money but aims ‘to reduce the volume of unworthy claims and the high cost of litigation by evening out the position between claimants and defendants’. It is indeed important to balance the rights of claimants and defendants. But it is also worth reminding ourselves at this juncture that in personal injury negligence claims, the defendant is very rarely an individual: insurers are the chief defendants and it is precisely their role to provide compensation when their clients do wrong. This causes a moral conundrum, particularly in relation to clinical negligence cases as the primary defendant is the NHS, and where a state body is the tortfeasor there is a ‘strong moral argument that the state should ensure ... access to justice’.

Compensation is used in practical ways to offset the damage caused and provide a semblance of normality pursuant to sometimes catastrophic injury. It is used to modify houses for wheelchairs, or pay for private treatment which is

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beyond the resources of the NHS. It provides exhausted carers with breaks, while dependents are cared for. Deducting from damages has a profound material impact on the standard of living of not merely the claimant, but of carers and extended support networks. By denying claimants the full bounty of their compensation, the Ministry of Justice are shifting the burden onto other departments, especially the NHS, who will have to fill the deficit of the damages gap when private care is not an option.

Conclusion

We will sell to no man, we will not deny or defer to any man, either Justice or Right. Magna Carta, 1215

It is arguable whether this central tenet of the Magna Carta, still in force on its 800th anniversary, continues to operate as anything more than a sound-bite since the enactment of LASPO. The Act continues to incite ignominy. Though its final enacted version is arguably a better piece of legislation than the originally contemplated Bill, ‘the wrongs contained in this [Act] … are monumentally devastating … and cannot be written off as collateral damage to be borne by British citizens in times of austerity’. For ‘this is not about austerity; it is not about fraud; it is not about ambulance-chasing; and it is not about a compensation culture … it is about elementary justice’.

Thornberg (2011) argues that there is an increase in apathy towards civil litigation at times of economic hardship, and that this is part of a wider and expanding anti-litigation rhetoric. It is possible to discern this thesis throughout the passage of this Act. As is too often the case in law and policy making, the human faces of negligence were largely ignored. Baroness Eaton gave a moving recital to the House of Lords of her personal brush with tort law: her son was

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misdiagnosed and though they had ‘a very strong clinical negligence case’, they decided not to pursue it: ‘we had the resources [but] not every family is in this privileged position, and I met many through those dark times who needed to make a claim so that their families could survive’. Talking of claimants in the abstract, as statistics, fails to appreciate that ‘no compensation ever adequately compensates for the loss of a limb, a severe disability or a life’.

The government have crafted a policy designed to ‘fit false perceptions’ and have produced ‘dog's dinner law’. The provisions are ‘mere palliatives and do not address the underlying causes of the English disease’ (Zuckerman, 2010: 210). They are disproportionate: arguably, the ‘disease’ could have been addressed by tweaking the existing policy framework (Ritchie, 2010: 155). Furthermore, LASPO eschews the fundamental principle of tort law; that full compensation should be provided by the person who acted wrongly (Ritchie, 2005: 156). Whether this Act will be judged retrospectively as an example of ‘legislating in haste and repenting at leisure’ remains to be seen. In the meantime, the Act is evidence of ill-thought out and ill-devised policy resulting in negligent law.

References

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Atiyah, P.S. (1997). The Damages Lottery, London: Hart Publishing.

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