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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.

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