There was an extraordinarily revealing moment during a recent BBC interview of Kenneth Clarke by Joshua Rozenberg for the Law in Action programme.

Towards the end of the programme Mr Rozenberg asked a key question: ‘The proposal is that the people who are the victims of clinical negligence will have to pay from their damages towards the success fee of their lawyers. Isn’t it right that if a court says you are entitled to damages, that’s what you should get?’

Mr Clarke’s answer was disarmingly honest: ‘I don’t think most lawyers will have the nerve to charge success fees to somebody who is paying on their own account out of their own damages.’

This answer is not explained but three conclusions can safely be drawn:

  • Mr Clarke believes lawyers should not take a part of a successful claimant’s compensation because that would be unfair - the very point opponents of the bill have been making all along. So why is he proposing a bill which he recognises is unfair?
  • He believes that under the new system lawyers should not charge a success fee in winning cases. But if Mr Clarke thinks it is unworkable and inappropriate for a claimant lawyer to charge a success fee, why doesn’t his bill simply propose that?
  • His comment undermines one of the central rationales for the bill - that costs will be driven down because claimants will have to pay some of the costs.

Of course, the problem raised by Mr Rozenberg does not apply just to clinical negligence cases but to any personal injury case. If you have been badly injured because of somebody else’s negligence and are awarded compensation, should a slice of that have to be paid as costs?

It is easy to deride ‘no win, no fee’ agreements, but with the removal of legal aid for most claims of this sort, this is a matter of principle. If we expect legal recourse to be available to everyone who has a valuable case with reasonable prospects of success regardless of means - and surely we all do - then funding for this is needed. ‘No win, no fee’ agreements currently meet this need - the idea being that the winning cases subsidise the losing ones. Mr Clarke’s comments reinforce the widespread belief that the proposed changes are unfair and unworkable and will only drive down costs by reducing access to justice.

Paul Taylor, Clinical negligence partner, Tees Solicitors, Cambridge