Fixed costs for clinical negligence claims – A reality in 12 months?

Fixed costs for clinical negligence cases valued at less than £25,000, are in the pipeline of Government changes to become a reality over the next 12 months or so. Whatever the new system looks like, all are in agreement that it will fundamentally change the way in which we run these types of cases in the future. The question is, will it enhance or deter access to justice?

Our head of the department, Mr Rankeshwar Batta, is an executive member of the Society of Clinical Injury Lawyers (SCIL), which campaigns for access to justice for all claimants seeking to bring a clinical negligence claim, and to ensure that any new regime of costs does not in any way impact upon clients who wish to bring a claim. SCIL have made it their focus over the last few months to campaign with the Government to ensure that the voice of genuine claimants and their lawyers are heard.

Where are we now?

A Civil Justice Council working group has been set up to look into making recommendations on how the new scheme should operate.  Provisionally, the group has to make its recommendations to the Government by September 2018. It will consider things like:

• how to implement fixed costs
• what the rates should be
• which types of cases would fall under the new regime
• what type of experts should be used
• how any new regime will influence patient safety and feedback of outcomes for learning purposes. 

In April 2018, SCIL managed to ensure that they had a place at the table and to take part in the working group consultation. SCIL will be advancing representations and data in order to support how best to tailor the scheme to ensure access to justice for the injured Claimant. 

Concerns

Our concern is that the Government is focusing its attention on apparent escalating legal costs, which is, in fact, the by-product of failures from the NHS to prevent and address medical accidents in the first place.

We believe that the following would result in an overall better long-term outcome for patients:

• dealing proactively when investigating complaints and requests for an explanation after something goes wrong;
• diverting funds and resources into patient safety;
• learning from mistakes;
• investigating complaints proactively; and
• better training.

Potentially, unless any fixed-costs scheme is fit for purpose, the most vulnerable people in our society are likely to be affected the most. Their claims are likely to be made uneconomical and it is important to note that lower-value claims can still be complex and challenging. By capping costs, it is likely to be the case that specialist solicitors are unable to devote the time required to understand the complex details of any given case.

Timeframe and concluding comments

The working party will hear all sides of the debate, including the representations by SCIL and other like-minded groups such as APIL and AvMA (Association of Personal Injury Lawyers and Action against Medical Accidents respectively). It is likely that if matters keep on track and recommendations are made in autumn 2018, then a likely start date of any fixed recoverable scheme might be April 2019. Although we are yet to hear about any the exact timeframes.

Anthony Collins Solicitors remain absolutely committed to claimant clinical negligence work and has continued to act on behalf of hundreds of deserving clients in all sorts of claims, ranging from modest value to catastrophic injury cases since the onslaught of change implemented by the Government from 2013. Our aim is to continue to do on implementation of the changes, and hope that the patient and their legal representatives’ perspective will be a paramount consideration when determining the final scheme. We will continue to voice our thoughts and concerns to the working party as the consultation continues.

Further information

If you want more information about the likely changes to take place, then do feel free to get in touch with Rankeshwar Batta.

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