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Thursday, 27 April 2017

Looking back at years of injustice for the bereaved

On Friday 28th April I will hang up my billing shoes. My fee earning days will be done as I move on to a new phase as a practice management consultant and trainer.

At times like, this you look back over the years and reflect on significant moments.

I can still remember a day in the 1980s when I came across a moment of injustice which still angers me to this day. I was instructed by the parents of a young student who had been tragically killed in a car accident. He was a passenger in a car driven by his friend and which crashed into a wall. No other cars were involved and his friend, who survived, was clearly at fault. At one level it was a clear cut case on liability.  

The injustice arose when we discussed the likely award of damages. The parents were clearly devastated. The son was 18 years and a few weeks old. I had to advise them that they were not entitled to any damages for their bereavement. That was my earliest encounter with the scandal that is the law of bereavement damages in England and Wales, which can lead to major injustice. And this injustice has never been properly resolved in all of my years in practice.

The entitlement to damages for bereavement dates from the Fatal Accidents Act 1976. It is a statutory entitlement to a fixed sum – currently £12,800.00. If that sounds shockingly low, there is worse to come. 

The only persons entitled to an award are a surviving spouse/civil partner or the parents of a child under 18 and they can only receive a single award – i.e £12,800 between them. do they share the pain of loss 50/50? This was why the parents in my case were not entitled to anything for their obvious bereavement; because he was marginally over 18. Nobody has ever properly explained to my why this arbitrary fact somehow lessened their bereavement.  Children who lose a parent, apparently do not suffer any bereavement that can entitle them to any damages. Siblings have no chance. 

There is no immediate sign of this changing.

The limiting of the award to an arbitrary figure has always been illogical and unfair. 

I once acted for the father of four young girls who lost his wife due to the admitted negligence of her local hospital. He was a devoted husband and father. I have rarely come across such a level of grief. He could barely discuss the case without dissolving into tears. He was suffering from a very high degree of pain and upset that surely deserved realistic compensation.

The time has come for all of this to change.

The Association of Personal Injury Lawyers is currently heading a major campaign on this very topic –

In Scotland, loved ones are treated with far more dignity. A broad range of relatives can claim - spouses/civil partners, parents/children, siblings, grandparents/grandchildren. Damages are assessed on a realistic basis having regard to such matters as the level of grief and sorrow suffered. Most importantly, there is no statutory cap.

Why victims south of the border cannot be treated with equal sympathy beggars belief.

We will see many promises from politicians over the next few weeks. 

A promise to ensure justice for those who suffer bereavement would be very welcome and is long long overdue…

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Wednesday, 26 April 2017

Defendants push for high limit on Clinical Negligence fixed fees

On 1st May the Consultation of fixed fees in Clinical Negligence ends. The Government proposes the introduction of fixed recoverable costs in cases where the value does not exceed £25,000.00. The scheme is driven by the Department of Health. Nobody has explained why the Government Department which is, in reality, the Defendant in most cases, is to decide what that Department must pay out in cases where they are found to be at fault…

I have previously written about this on LinkedIn.

The consultation suggests a number of alternatives. It is fair to say that in those cases affected by the changes, the recoverable costs will be significantly lower than those with which lawyers have become accustomed. The proposal for experts’ fees is alarming in the extreme - £1200.00 in total for reports on breach of duty and causation. I cannot imagine experts who will be willing to work for those sort of fees.

Having said all of this I suspect the fixing of recoverable costs in lower value cases is inevitable. In an era of proportionality it is becoming increasingly hard to justify costs which are many times higher than the damages. A recent example of this is the case of Rezek-Clarke v Moorfields Eye Hospital NHS Trust. The claim settled for £3250.00. The Claimant’s solicitors submitted a bill for £72320.00 which was reduced to £26,200.00. Notable deductions were the ATE insurance which went from £32,000.00 to £2120.00 and the expert fees which went from just over £18,000.00 to £7500.00.

The proposed fees remain eye wateringly low. It is hoped that the Government – if it survives the election (!) will take note of the many responses to the consultation and come up with something more workable. The alternative that is that many Solicitors will be unable to take on such cases with its inevitable impact on access to justice.

But the big worry remains that the upper limit could go as far as £250,000.00. This was the original intention of the DOH. It is being strongly promoted by the Defendant lobby –

Alongside the present consultation we will soon see the report of Lord Justice Jackson who is known to favour the imposition of fixed fees for all civil cases up to £250,000.00. So will this proposal be overruled by Jackson!

This will be a major setback for victims of medical blunders. A Clinical Negligence claim worth £250,000.00 is not a low value claim claim. A victim who might receive damages at that level has suffered a life changing injury. They may not be able to work again and/or might need care for years. It is unthinkable that the government might consider putting a further hurdle in the way of victims. In the last few years they have lost the right to legal aid in virtually all cases. They have seen the abolition of recoverable success fees and most insurance premiums both of which have to be deducted from damages. Introducing draconian cuts in recoverable costs for cases up to £250,000.00 will inevitably deter many.

Politicians need to learn the value of justice and not just the cost.