Anthony Barton suggests that the caution being shown by after the event insurers could illustrate a future saving for taxpayers:

As the Access to Justice Bill is being passed, the Government is giving the conditional fee system a boost by proposing that the success fee and the 'after the event' insurance premium be recoverable from the unsuccessful party.

The Government has also confirmed that it intends to withdraw legal aid for personal injury claims, although clinical negligence is to remain within the scope of legal aid – for the time being.

The main reason for this delay is uncertainty about the current ability of the insurance industry to provide the necessary litigation support.

It was against this background that after the event insurers met with leading clinical negligence lawyers at Medical Negligence: Justice For All, a roadshow sponsored by specialist journal Medical Litigation held at the Law Society on 1 February.

With new markets and opportunities for lawyers, the mood was upbeat. More than 200 delegates were able to discuss insurance solutions with 20 exhibitors, including Greystoke Legal Services, Litigation Protection, Amicus and Saturn Professional Risks – so far the insurance giants have shown little interest.

Other exhibitors included various chambers, forensic accountants, specialist publishers, recruitment consultants and expert witness services.
The Medical Litigation stand attracted attention by demonstrating its interactive website with the facility to download full text law reports – a service in addition to its monthly publication.

Predictions that conditional fee agreements would be unworkable in clinical negligence were proven wrong by the success stories presented by Bob Gordon of Greystoke and Brian Raincock of Litigation Protection. This was confirmed by other insurers.

Claims assessment appeared quite straightforward. Greystoke relied on a panel of solicitors with a recognised track record. Litigation Protection relied on independent assessors not involved in the case. According to Raincock, the success rate of clinical negligence claims was above 90%, the average premium was less than £2,500 and more than 500 policies had been issued.

February 1 also marked the coming into force of the Legal Aid Board's (LAB) franchising scheme for clinical negligence, whereby state funding is only available for services provided by 'quality assured' lawyers.

This policy is in response to the appaling success rates of legally-aided clinical cases. Previously, any lawyer could provide clinical negligence legal aid services.

According to the LAB's most recent figures (1996-97), of the 12,556 cases which were closed, more than 6,000 were handled by approximately 3,000 non-specialists.
In addition, 2,844 firms handled five or fewer cases, supporting MP Geoffrey Hoon's recent statement that "a large number of firms do very few cases, fairly poorly".

The intention is to limit legal aid to supposed specialists to improve the quality of service, and the value for money as well as the success rate. However, the LAB's figures make interesting reading: the overall success rate for non-specialists was 17%, compared with 28% for 'specialists'.

Of cases that went to trial, the success rate was 35% for non-specialists and 52% for 'specialists'. These figures are to be compared with the very high success rates reported by the after the event insurers.

One message is clear: insurers seem better at assessing the merits of claims than lawyers. Indeed, Raincock referred to some cases which had been turned down for legal aid on their merits, but which had been accepted for conditional fee supported by insurance firms and had gone on to win a successful outcome.

One of the perceived difficulties of clinical negligence is the investigative cost – it is only when detailed expert medical reports are obtained that the merits of the case can be assessed. This is a major obstacle to the growth of conditional fees.

Andrew Farkas, consultant obstetrician and gynaecologist, has introduced the concept of case screening, which may provide an economic and efficient means of assessing the merits.

Most medical negligence claims are relatively straightforward in that they only concern a small number of issues in the context of a mass of complex and largely irrelevant facts.

The purpose of screening is to focus on the crucial issues: these are identified, isolated, analysed and determined. In many cases, this can be done on paper alone. Many cases are negative and can be resolved in this manner.

Screening identifies cases that are unsustainable so that resources can be targeted on the remaining cases which require more detailed consideration.
However, Farkas pointed out that there was only limited practical experience of screening techniques.

It seems that one of the reasons for the expense and complexity of medical negligence cases may be that the taxpayer is paying for it. However it is accepted, even by the sternest critics of legal aid, that clinical negligence litigation does raise special difficulties in terms of the initial investigative costs.

To some extent these problems could be met by expanding the market for before the event products aimed at financing these costs. Such products at modest expense would be sold as add-ons to household or motor insurance policies.

However, there would still be a vulnerable sector of society which did not have access to such benefits.
So how is the Government to effect its intention of privatising clinical negligence litigation?

The Government has provided assurances that, although it proposes to withdraw legal aid for personal injury litigation, it will retain a discretion to allow funding where, for example, investigative costs are substantial.

This means that the case can be funded by conditional fees, if suitable, after the merits of the case have been established. Senior officials of the Lord Chancellor's Department have strongly hinted that this is the preferred model for clinical negligence litigation.

In effect, this will mean a part-privatised system, with features of conditional fees and state funding of a partnership where risk is shared.
The roadshow demonstrated that the conditional fee system for clinical negligence was not merely viable, but also hugely successful, albeit on a small scale.

It will provide the Government with the assurance that medical negligence litigation is ready for conditional fees – with a little help from the state.
It may turn out that access to justice is determined not by the availability of legal representation, but by the availability of after event insurance.

On the basis of present information this may be no bad thing.

Anthony Barton is a solicitor and medical practitioner.