The government is now consulting on the introduction of fixed recoverable fees in all Clinical Negligence cases with a value up to £250k. That will catch some very substantial cases involving severe disability.
It is no surprise that the move is justified on the basis of criticism of those law firms who represent victims. In a report mentioned by Litigation Futures the Department of Health says –
“in the experience of the [NHSLA], significant costs are often incurred by claimant lawyers in the pre-litigation and pre-notification period and are not subject to costs budgeting requirements. There is also evidence of claimant solicitors attempting to claim costs well in excess of the current guideline hourly rates, and considerably higher than the NHSLA pays its defence solicitors.”
I have mentioned before that it is inappropriate for the organization which represents the NHS to try and control the level of legal costs which they have to pay. They are clearly conflicted. Remember they are only paying anything in cases where liability is proven or admitted. A case involving awards up to £250k means life changing injuries.
Now I need to say that I am not particularly worried by the likelihood of fixed fees in straightforward cases. I have long suspected that they were inevitable especially as costs budgeting seems to have been a shambolic and expensive experiment. Fixed fees are now widely used in commercial litigation and transactions. Payment by the hour is perceived as a reward for dragging cases out, particularly those which are not complex. But many cases up to £250k will be very complex.
What is clear, is that this is an attempt to reduce the number of genuine claims and the amounts payable to victims. If the NHS does not have to pay full legal costs in those cases where they are clearly at fault, it is the victims who will have to pick up any shortfall.
The NHSLA need to review their own conduct. I have started court proceedings in two cases, in the last month, where the NHS failed to respond to a letter of claim within the four months set out in the pre action protocol. In both cases they have subsequently admitted liability. The legal costs are now much higher then they would have been. Why is that the victim’s fault?
It is also reported today that the NHSLA routinely fail to make interim payments to victims –
Many cases are aggressively contested and then settled late in the day for modest damages and huge legal costs. If these cases were resolved at an early stage there would be massive savings.
We have seen a developing pattern over the last few years where victims, and their representatives, are attacked as a prelude to the introduction of measures designed to shrink access to justice. I suspect that some form of fixed fees is inevitable across all civil litigation. But this has to be based on sensible and commercial discussions and not inflammatory rhetoric.