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Fixed Costs Limit: Update

Following a conference of injury lawyers held last week, there have been hints about changes to the proposed fixed costs regime in Medical Negligence cases that the government wishes to introduce. Previously it indicated that fixed costs could be imposed on cases worth up to £250,000, but now it seems that this could be limited to £25,000.

The fixed costs scheme seeks to prevent lawyers from claiming excessive legal costs following the conclusion of successful clinical negligence cases. There currently is no limit on the amount that can be claimed, which the Department of Health says is to blame for the NHS’s £1.5 billion litigation bill in 2015/16. By introducing the cap, the government hopes to save around £45 million per year, keeping this within the NHS where it can best benefit patients.

Health Secretary Jeremy Hunt has previously shared his support for fixed costs regimes, in order to tackle the “unscrupulous law firms [that] cream off excessive legal costs, dwarfing the actual damages recovered” in lower cost claims. “We believe this creates an adversarial culture of litigation, which is inflating insurance premiums and drawing away resources from the NHS as a crucial time.”

Previous discussions had indicated that the cap would be on cases worth up to £250,000. Lord Justice Jackson, the judge guiding such policy changes, had initially supported the higher threshold but has since appeared to change his mind. Speaking at the Association of Personal Injury Lawyers (APIL) conference last week, he expressed concerns about the practicality of such measures. He said that there would be ‘considerable difficulties’ involved in applying fixed costs to claims worth in excess of £25,000.

However, LJ Jackson revealed his ongoing support for fixed costs regimes, stating that the established measures for fixed costs for lower-value claims in the multi track are working well, and “teething problems have been dealt with”. He recommended such regimes in his civil justice review following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO).

Fixed costs were introduced in some areas following LASPO, including claims against the police. At a conference held in January 2017 to review his reforms, Jackson heard from claimants in such cases about their experiences of the system. A common theme was noticed, that these victims had faced an adverse costs risk, even at a comparatively low level of £5,000. They were simply unable to find £5,000 to cover such costs, which is certainly not unheard of in litigation.  This meant that less people were inclined to investigate potential claims.

The suggested reduction from £250,000 to £25,000 has been well-received by the Law Society, who lobbied hard on the proposals. They have been clear to express opinions that complex claims should be excluded, as supported by APIL, who said cases including fatalities, limited life expectancy, multiple litigants or cases involving Human Rights issues should be excluded.

Conversely, the Medical Protection Society, who is arguing in support of fixed fees on cases up to £250,000, say the public support such measures. They quote figures from a YouGov survey, with 82% of 2,000 adults agreeing that lawyers should not receive more in fees than victims do in compensation. 81% of those surveyed voted in favour of fixed costs for lawyers.

Regardless of the comments made at the APIL conference, the Department of Health has already been in discussions about applying for fixed costs with a limit of £25,000. The review is due to be concluded this month, with the final stages left for the incoming government to deal with following the General Election on 08 June.

Melanie Lidstone-Land, Head of Personal Injury & Clinical Negligence at Swain & Co feels strongly that imposing fixed fees for medical negligence cases is a barrier for those wishes to make claims against the NHS or other medical health/treatment provider.  She says:

“I am passionate about the rights of individuals to question the outcome of their health provision or treatment and to seek answers when things go wrong.  I have no doubt that people agree that excessive legal fees should be stopped and I agree.  I also have no doubt that people feel that more money being spent on the NHS is a good thing.  I agree with that as well but I know that the reality is very different.”

“The reality is that lawyers will not be able to pursue cases for very limited fees and neither will the independent medical experts (a lot of whom work for the NHS as well as in private practice) be able to produce quality reports for the small fees now proposed.  This means that smaller cases may not be able to be pursued and those potential clients (for whom £25,000 is still a lot of money) will be prevented from having “access to justice”. “

If the NHS has failed you or one of your loved ones, we are here to help. Swain and Co Solicitors have an advanced Clinical Negligence department who regularly deal with clients who have received substandard medical treatment. If you, a family member or friend has received substandard medical treatment, contact our team on 02392 483322.

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