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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.

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