APIL has published its response to the proposals for fixed fees in Clinical Negligence cases. Interestingly they emphasise the important and unsung screening work done by claimant’s legal advisers.
This is something which I have mentioned in the past. It is very easy to overlook the importance of this in weeding out the weaker cases and ensuring that only the clearest of cases are presented to the NHS. I have never seen any acknowledgment of this by the government or NHSLA.
The impression is given of aggressive ambulance chasers who are simply building up case loads to attack the beleaguered health service. In fact, in the case of my own firm an average of 60 cases is pursued for every 1000 unhappy patients
In most cases this work is done without payment. It is, of course, in our interests to select the strongest cases. In a world of no win no fee litigation – imposed by successive governments – no litigator can earn a living by taking on weaker cases. This will ultimately lead to a reduction in the number of ‘cutting edge’ cases that have historically developed the common law. But that is another topic for another day. But the reality is that the volume of cases faced by the NHS is controlled by this unpaid work done by claimant lawyers.
I have to agree with APIL that a squeeze on payments in lower value reduce lawyers’ capacity to carry out this exercise. Although I suspect that many firms will still be cautious, for the sake of their own commercial viability. Equally they do have a point that a deluge of poorly screened cases will ultimately lead to much higher costs overall.
I am not in fact against the idea of fixed costs in principle. Any arrangement that rewards speed and efficiency must be preferable to one that encourages the chalking up of as many hours as possible. But if the aim is to use this to reduce the number of claims then any economy will be false.
This is of course based on the government’s fixation with blaming victims and their advisers.
Far more significant savings will be achieved by a focussing on the avoiding of negligence in the first place. It would also lead to huge savings if early admissions were made. How often to these cases develop into a war of attrition only to settle at the 11th hours after eye watering costs have been incurred?
The NHS has notably, been criticised by the courts for refusing to mediate in some cases –
These fundamental changes in attitude will achieve far more than any tinkering with the costs regime.