Tax, Europe and the future of the UK’s public services have dominated the run-up to next week’s election.
But the main political parties’ manifestos nevertheless contain proposals that have caused ructions in the legal profession.
Initiatives on clinical negligence litigation, serious fraud trials, competition in the legal profession, judicial appointments and litigation funding are all
generating controversy.
On clinical negligence, Labour is promising to slash the Government’s multi-billion pound bill for clinical negligence claims. One of its proposals is for fixed damages for standard cases without the need to involve the courts. Another is to award damages in phases to account for whether post-claim treatment is carried out privately or on the NHS.
Clinical negligence expert Mark Scrivenger, of Scrivenger Seabrook, is not impressed. He claims that the Government has not thought things through. “It is a knee-jerk response,” he says.
He says it is hard to see what new ideas the proposals on clinical negligence offer. He argues that they overlook the fact that interim payments can already be made with a structured settlement. An informal tariff system also already exists in the form of the Judicial Studies Board Guidelines, which promote conformity in awards.
The Labour party also wants to overhaul the criminal court system and sees strength in the argument for specialist courts and judges
for cases such as fraud. The head of fraud at Simons Muirhead & Burton, David Kirk, is one supporter of the proposal. “I am partly in the camp that thinks juries often do not understand the issues in a fraud trial,” he says. “After weeks of trying to take in the information they just hit and hope.”
Pannone & Partners’ Paul Taylor disagrees. His stance is that complicated evidence is not found only in fraud cases and there is the danger of a slippery slope. “Once you start splitting hairs – when do you stop?” He believes trial by jury to be a fundamental right.
Labour also says it will scrutinise restrictive practices in the legal professions. The promise
follows the Office of Fair Trading (OFT) report on the professions, which found a number of instances where competition in the legal market was repressed and attacked the QC system.
The manifesto also promises to continue reforming the judicial selection process, but stops short of a commitment to set up an independent judicial appointments commission.
An independent commission does form a part of the Liberal Democrat manifesto. They want to see the powers of the Lord Chancellor curbed. The party favours a Department of Justice, which would separate powers between the executive and the legal system, reforming the powers of the Lord Chancellor.
Another key issue is litigation funding. Labour aims to extend the Community Legal Service, which replaced the civil legal aid system, to 90% of the population within a year.
The Conservatives have returned to the idea of a community legal aid fund (CLAF) – a merit-only scheme open to all including, possibly, companies. By taking a percentage of the damages awarded to a successful claimant, the scheme would become self-financing within three to four years.
The Liberal Democrats say they will review the legal aid system but offer no definite proposals. One avenue is a contingency legal aid fund, which was mooted by the party during the Access to Justice Bill.
Criminal reform
