24 March 2010 : Column WA301
NHS: Litigation

Question

Asked by Lord McColl of Dulwich

To ask Her Majesty's Government how many cases of clinical negligence against the National Health Service funded by conditional fee agreements in each of the past five years were closed; in how many such cases damages were paid, whether by a settlement or award by a court; and, in cases where damages were paid, what were (a) the costs of defending the cases, (b) the legal costs paid to the claimants (including (1) base costs, and (2) success fees), and (c) the amounts paid in after the event insurance premiums. [HL2754]

The Parliamentary Under-Secretary of State, Department of Health (Baroness Thornton): The information requested was provided by the NHS Litigation Authority (NHSLA) and is in the following table. With regard to claimants' costs, the NHSLA negotiates with claimant legal teams in order to bring costs down, and a final global figure is agreed on claimant costs on each claim. The NHSLA is therefore unable to provide a breakdown of this figure.

Comments:

1.             The striking feature of these figures is the increasing importance of conditional fee agreements.

2.             The apparent success rates seem relatively high under the conditional fee system (the table refers merely to “Number of Claims” - it is assumed this means successful claims in answer to the question) compared to legal aid.

3.             Claimant costs are disproportionately higher than defence costs.

4.             It is of concern that the Government cannot provide a breakdown of success fees and after the event insurance premiums; how can it form a view as to what are reasonable success fees and insurance premiums?

The following: written questions were tabled 9 March 2010

MMR and legal aid:

Lord McColl of Dulwich to ask Her Majesty's Government  what

assessment they have made of the appropriateness of
funding by legal aid of research carried out on the
claimants and controls in connection with the measles,
mumps and rubella/measles and rubella vaccine litigation.
HL2675
Lord McColl of Dulwich to ask Her Majesty's Government
what assessment they have made of any purported ethical
approval for the blood tests to detect the presence of the
measles virus carried out on the claimants and controls in
research funded by legal aid in connection with the
measles, mumps and rubella/measles and rubella vaccine
litigation. HL2676

Lord McColl of Dulwich to ask Her Majesty's Government
what assessment they have made of any purported ethical
approval and clinical indication for lumbar punctures
funded by legal aid performed on the claimants in
connection with the measles, mumps and rubella/measles and
rubella vaccine litigation. HL2677

Lord McColl of Dulwich to ask Her Majesty's Government
what plans they have to recover legal aid money paid to Dr
Andrew Wakefield in connection with the measles, mumps and
rubella/measles and rubella vaccine litigation. HL2678
Lord McColl of Dulwich to ask Her Majesty's Government
what plans they have to recover legal aid money paid to
Alexander Harris solicitors in connection with the
measles, mumps and rubella/measles and rubella vaccine
litigation. HL2679

Lord McColl of Dulwich to ask Her Majesty's Government
what plans they have to recover legal aid money paid to
Jeremy Stuart-Smith QC, Simeon Maskrey QC, and Augustus
Ullstein QC in connection with the measles, mumps and
rubella/measles and rubella vaccine litigation. HL2680

http://www.publications.parliament.uk/pa/ld/ldordpap.htm#qwa

Lord McColl of Dulwich to ask Her Majesty's Government how
many cases of clinical negligence against the National
Health Service funded by conditional fee agreements in
each of the last five years were closed; in how many such
cases damages were paid, whether by a settlement or award
by a court; and, in cases where damages were paid, what
were (a) the costs of defending the cases, (b) the legal
costs paid to the claimants (including (1) base costs, and
(2) success fees), and (c) the amounts paid in after the
event insurance premiums. HL2754

House of Commons:

Written answer:

11 March  2010 : Column 474W

MMR and Legal Aid

Mr. Baron: To ask the Secretary of State for Justice (1)
whether an assessment has been made of the appropriateness
of funding by legal aid of concluded MMR vaccine
litigation; [321634]

(2) whether an assessment has been made of the
appropriateness of funding by legal aid the research
carried out on claimants and controls in connection with
concluded MMR vaccine litigation; [321635]

(3) whether an assessment has been made of purported
ethical approval and clinical indication for lumbar
punctures funded by legal aid performed on claimants in
connection with concluded MMR vaccine litigation; [321637]

(4) whether there are plans to recover legal aid money
paid to Dr. Andrew Wakefield in connection with concluded
MMR vaccine litigation. [321622]

Column 475W

Maria Eagle: The MMR vaccine litigation involved
allegations that, as a consequence of a national
vaccination campaign, children were very seriously injured
because the vaccine in question was defective. Legal aid
funding, which covered litigation services, advocacy and
disbursements for experts, was granted in the early stages
of the case, and was supported by the opinions of leading
counsel, which took into account the expert evidence
available at the time.

The Legal Services Commission (LSC) is obliged to review
continually the merits of funded litigation, and to
withdraw funding where a case no longer meets the legal
merits test. Funding for MMR claims was therefore
discontinued when they no longer met this test. Since the
MMR vaccine cases concluded, the civil legal aid Funding
Code guidance has been revised, and there are now more
stringent criteria for funding high-cost cases, and a
presumption that legal aid will not be used to fund new
scientific research.

We are not aware of any assessment of the ethical approval
of procedures carried out as part of the expert evidence
provided for this case. This would be a matter for the
General Medical Council, not the Ministry of Justice or
the LSC. The LSC has no plans to recover legal aid fees
paid to Dr. Andrew Wakefield in connection with expert
advice in the concluded MMR litigation.

Editor’s Note:  The charges made against Dr Wakefield by the GMC included:

“4. a. You,

i. failed to cause the Legal Aid Board to be informed that investigations represented by the clinicians as being clinically indicated would be covered by NHS funding,

Found proved

The Panel is satisfied that you had a duty to disclose to the LAB, via Mr Barr, that clinically indicated investigations would be funded by the NHS, and that, despite having opportunities to do so, you failed in that duty.

ii. caused or permitted the money supplied by the Legal Aid Board to be used for purposes other than those for which you said it was needed and for which it had been granted,

Found proved in relation to the second instalment of £25,000.

The Panel is content that the first instalment of £25,000 was used for the purposes for which it was granted.

The Panel is convinced by documentary, and your own evidence, that you used the second instalment for, amongst other things, research staff wages, not the items listed in 3.d.i and 3.d.ii.

b. Your conduct as set out at paragraph 4.a.i. was,

7i. dishonest,

Found proved

The Panel is satisfied that this action, was dishonest, judged by the ordinary standards of reasonable and honest people. It is further satisfied that you knew that some or most of the funds would not be used for the reasons you had stated, because you had agreed a process with Mr Barr by which children would be selected for the study from those who had already been investigated at the Royal Free Hospital and who would have therefore been funded by the NHS.

ii. misleading,

Found proved

An article in The Times which sets out the current state of play can be read at: http://www.timesonline.co.uk/tol/life_and_style/article1042597.ece?print=yes&randnum=1268275729343.

The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw):

“Further to my written ministerial statement on 19 January 2010, Official Report, column 14WS, I have published today the Government's response to the consultation paper entitled ‘Controlling Costs in Defamation Proceedings -Reducing Conditional Fee Agreement Success Fees’. As the response sets out, the Government have decided to proceed with the proposal to reduce the maximum success fee which can be claimed in Conditional Fee Agreements (CFAs) in defamation cases to 10 per cent.  I have laid an affirmative order before Parliament today to achieve that.

Our consultation paper sought views on the Government's interim proposal to reduce the maximum CFA success fee in defamation cases while we consider Sir Rupert Jackson's substantial report, ‘Review of Civil Litigation Costs’,  published on 14 January, for longer-term reform.

As the consultation paper recognised, high legal costs in defamation cases -particularly in defending claims brought under a CFA with 100 per cent. success fees - may have a harmful effect on freedom of expression. This affects not only the media, but also scientific and academic debate. The consultation closed on 16 February. A total of 57 responses were received, including from legal professionals and their representative organisations, members of the judiciary, media organisations and from legal insurance groups. More than half (53 per cent.) of those who responded supported the proposal to reduce the maximum CFA success fee in defamation cases to 10 per cent. The response paper summarises the responses received and the Government's conclusions.

Since that consultation closed, the Culture Media and Sport Committee has published the report of their inquiry into press freedom, libel and privacy (on 3 Mar 2010: Column 112WS 24 February 2010). The Committee agrees with our proposal that the impact of success fees on defendants should be capped at 10 per cent. However, the Committee considers that recoverability - rather than the success fee itself - should be capped at 10 per cent.

The Government are actively assessing the implications of  Sir Rupert's recommendations, and will announce how they are to be taken forward in due course. The Government are also considering the Committee's report and will respond to the Committee's recommendations shortly. However, in the meantime we are minded to implement the proposal to reduce the maximum CFA success fee in defamation cases to 10 per cent. immediately as an interim measure so that the specific concerns around high costs in defamation cases can be addressed urgently.

I have therefore today laid the Conditional Fee Agreements (Amendment) Order 2010 before Parliament so that the success fee reduction can come into force as soon as possible subject to parliamentary approval. The order will apply to CFAs in respect of defamation cases entered into after the date on which the order comes into force.

Copies of the response paper will be placed in the Libraries of both Houses and on the Department's website at: www.justice.gov.uk.

 The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): My noble Friend, the Under-Secretary of State, Lord Bach, has made the following written ministerial statement:

“Following a consultation process, the Government today announce the launch of a new project to review current fee arrangements and deliver new fee structures for professional expert witnesses. A central working group of key stakeholders involved in  experts work will shortly be established to help MoJ gain a greater understanding of the range of work which experts do and how this is currently remunerated. In conjunction with this, a further group of experts will be asked to contribute to a wider reference group. The new project follows the MoJ's careful consideration of the feedback received to the earlier consultation "Legal Aid: Funding Reforms" where the Government proposed exploring the concept of fixed fees and hourly rates for experts work.
As a result of the wide range of responses received from experts, legal practitioners and other representative bodies, the Government have decided that additional
analysis of this complex area is needed to ensure that any future fee structures are both sustainable and fair.  By seeking greater control over expert fees, the
Government aim to reduce disbursement spend to a more sustainable level, while maintaining access to justice through the provision of key expert evidence. It is intended that the project will report to Ministers  with proposals for a new fee structure within six months.”