Solicitors fear that education claims will become too risky if CFA plans are passed

LEGAL AID: lawyers have insufficient precedents on which to base prospects of success

Proposals from the Legal Services Commission (LSC) that education damages claims should be run on conditional fee agreements (CFAs) rather than legal aid have provoked fears among solicitors in the field that the work will become too risky to take on.

The plans would mean that solicitors could get funding for investigative help to determine the likely success of the case but would have to continue on a CFA if the prospects were better than 50%.

If insurance were unavailable, full representation could be granted - but in a limited form that would only cover disbursements, with profit costs and counsel's fees to be covered by the CFA.

The changes would affect, for example, claims arising from cases of failure to diagnose dyslexia or psychiatric injury caused by bullying.

The LSC said it wanted to find a 'practical solution to the problem that there appear to be a range of non-personal injury cases under the general funding code which should be suitable for CFAs, but for which affordable insurance and banking products are unlikely to be available'.

Jack Rabinowicz, a partner at London firm Teacher Stern Selby and chairman of the Education Law Association, warned that lawyers with specialist knowledge and experience in education would be forced to consider whether or not they could continue undertaking the work.

'It will probably not be possible for solicitors and counsel currently undertaking publicly funded education work to continue doing so, given the huge financial risks of entering into CFAs in such a new area of law,' he said.

Legal Aid Practitioners Group director Richard Miller argued that education cases were not like personal injury claims, where a long history of case law had resulted in established principles.

'Issues of causation and quantum are also almost invariably very complex,' he argued.

'As a result, this discipline is not at a stage where practitioners can form a sufficiently reliable view of the prospects of success to be able to accept the risks inherent in a CFA.'

The consultation period ended on 20 June.

An LSC spokesman said it was considering the responses carefully.

'We are in discussions with the Department for Constitutional Affairs regarding this consultation and expect to make a decision soon,' he added.

Paula Rohan