What Next For Clinical Negligence Costs?
Within the Department of Health and across much of the legal system, thought is currently focussed on the question of fixing costs in civil litigation. The Department of Health issued a consultation on the subject in January of this year and Lord Justice Jackson has just published his report on the matter after several months of discussions and research. So, where is this heading?
The Department of Health
The DOH consultation on fixed recoverable costs in clinical negligence claims closed at the beginning of May this year. The outcome of the consultation is yet to be released, however, having been delayed by the general election and the formation of a new government in June of this year.
In addition to reducing costs paid by the NHS in cases where it is found to be at fault, the government's stated intentions of introducing fixed costs include a desire for quicker resolution of cases, increasing access to justice and encouraging learning in the NHS from past mistakes.
The DOH is proposing that costs which can be recovered from the losing side in such litigation be fixed for those cases with a value (in terms of level of compensation to the claimant) of less than &25,000.
Responses to the Proposals
The Civil Justice Council
In its response to the DOH consultation, the Civil Justice Council has commented that, whilst it does 'support the application of fixed recoverable costs in principle', it 'is concerned that the proposals may impede access to justice' by deterring lawyers from taking on complex but low-value cases where they may be unable to recover their costs.
The Council is concerned about the narrow focus on level of compensation in relation to level of costs and highlights the wider issues of the complexity of most clinical negligence cases and the need for expert medical evidence and input at an early stage of proceedings, which can be costly.
Action against Medical Accidents (AvMA)
Since the January announcement of the government's plans to impose fixed recoverable costs on cases with a value up to &25,000, AvMA has been striving to voice its opposition and gather support for its argument that, to quote AvMA CEO, Peter Walsh, in his recent article in The Telegraph, 'this plan is at best ill-conceived, ignores the root causes of high costs and would have serious unintended consequences.'
AvMA's arguments include the following:
- Claimant costs in clinical negligence cases frequently rise unnecessarily because the NHS has a culture of denying responsibility for medical accidents and delaying settlement of claims until the last minute, thereby extending the life of the case and its associated costs, especially where settlement is not reached until the case goes to court.
- The NHS is failing to learn from its mistakes, meaning that, for example, (to quote from The Telegraph) 'the NHS is facing soaring numbers of cases of brain-damaged babies.' If lessons were learned, fewer mistakes would be made.
- The types of cases which frequently fall below the &25,000 compensation level are those associated with the most vulnerable in society such as the elderly and the disabled, to whom the claim is of great significance and can be complex and, therefore, costly. If lawyers cannot recover the true costs of such cases, these vulnerable groups will find it increasingly difficult to access justice, especially in the aftermath of legal aid cuts.
Lord Justice Jackson's Costs Review
Lord Justice Jackson has now published his Review of Civil Litigation Costs after months of evidence-gathering and meetings with stakeholder groups across the country.
His remit was far broader than the DOH consultation, considering the implementation of fixed recoverable costs right across all aspects of civil litigation. This work follows his 2012 recommendations regarding proportionality in costs, success fees and After the Event insurance.
Fixed recoverable costs are already applied in Road Traffic Accidents, Employers' Liability and Public Liability fast track (up to &25,000) cases. Lord Justice Jackson has recommended 'that all recoverable costs in fast track cases be fixed and that the figures be reviewed every three years.' Furthermore, he recommends the introduction of an 'intermediate' track for certain claims up to a value of &100,000 with associated fixed recoverable costs. He does, however, recognise that some areas of the law require special consideration.
Jackson & Clinical Negligence Claims
With regard to clinical negligence cases, Lord Justice Jackson has recognised that low-value, but nonetheless important, cases can still be extremely complex and may not fit his proposed schemes. He has suggested that the Department of Health and the Civil Justice Council work with claimant and defendant representatives to develop agreed processes suitable to handling these types of claims with an associated fixed recoverable costs grid for cases up to &25,000.
Responses to the Jackson Recommendations
AvMA's Peter Walsh has welcomed the recognition that clinical negligence cases require a 'standalone' scheme rather than an imposed system devised by the Department of Health but has also commented that "We are disappointed that Lord Justice Jackson has not accepted the evidence he was given and has not fully appreciated the unique challenge of clinical negligence claims." He further added that "If fixed costs do go ahead it is imperative at the very least that there are exceptions for all fatal cases, cases including children and adults who lack capacity."
Likewise, Gerard Stilliard, head of personal injury strategy at Thompsons Solicitors, as quoted by the Law Society, has commented that "Fixed costs reduce access to justice for injured claimants and thus suit insurers."
On the other hand, the Medical Defence Union has commented that "fixed costs are fairer and could, and indeed should, be applied to all cases valued at up to &250,000."
The Future?
A report into the nature of costs in clinical negligence compensation claims by the National Audit Office, looking at why costs can be high, is still being awaited. It would make sense for the findings of this report to form part of the on-going discussions as to the future of clinical negligence claims processes and costs.
The outcome of the Department of Health's consultation is also awaited as well as the government's reaction to the recommendations of Lord Justice Jackson.
The future of costs in clinical negligence cases is still unclear.
Glynns Solicitors
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