In an article in the Law Gazette on the 8 July 2019, Lord Falconer of Thoroton, (who was a Lord Chancellor in Tony Blair’s government), raised queries about plans being drawn up by the Ministry of Justice and Department of Health for fixed costs for Claimant lawyers in clinical negligence.
Lawyers are currently awaiting the report of the Civil Justice Council as to how such a scheme might work.
Fixed costs have been a feature in personal injury cases such as road traffic accidents and accident at work cases for some 6 years. The thinking is that this should be extended to include clinical negligence cases, which can be some of the most complex cases to deal with. Low value compensation figures do not always equate with simple and straightforward cases where medical failings are alleged. For the moment, the scheme is intended to cover claims up to £25,000.00. There is no guarantee that this would not be extended to higher value claims in due course if brought in.
Fixed costs are literally what they say they are. Lawyers receive a certain amount of for legal fees in successful cases, according to a formula. If the claim is indeed simple and straightforward, then the fees can cover the costs incurred. If, however, the case turns out to be more complicated than first thought and more work is required, then even if the cost of the work done exceeds the amount of the fixed costs, the lawyer will not receive any increased costs to cover that. Those costs are lost and have to be absorbed by the firm in question. It can be hard to run a business on those lines.
But Lord Falconer had this to say:
“The government should step back from the proposals and listen to those with day-to-day experience of running clinical negligence claims”
He expressed concern that the government proposals would likely backfire. Established firms on the claimant side would exit the sector because they could indeed not run their businesses on that model. They would potentially be replaced by unregulated claim management companies (CMC’s). Solicitors are a highly regulated profession with specialists in many areas of law, but CMC’s may not be regulated and may not have the specialist expertise required to run these claims properly.
Specialist clinical negligence lawyers also have the skills to identify at an early stage claims that really will not succeed in legal terms, though they may be important to the potential Claimant. But it is not fair to give such potential Claimants false hope, only to drop the case quicker than a hot brick at a later stage when it becomes apparent a case cannot succeed. Steve Webber, chairman of SCIL, the Society of Clinical Injury Lawyers said that identifying claims which cannot succeed at an early stage meant that the NHS do not have to spend time on such cases. They can instead concentrate on cases that really do seem to have legal merit and perhaps settle them more quickly, saving money, or, to be fair, properly defending claims that do have a defence which can be explained, such that the Claimant understands why there is no claim.
Lord Garnier, a Conservative former Solicitor-General, has previously wondered why the plans did not also include some way to demand a change in Defendant behaviour.
Saying that the NHS frequently increased costs themselves by their “delay, deny and defend” culture even sometimes in the face of the most obviously negligent behaviour. Clinical negligence lawyers have often wondered this too, unsurprisingly. There are no sanctions which would prevent a Defendant hospital Trust from delaying and making irrelevant demands of the Claimant which have the effect of increasing costs beyond what the lawyer can hope to recover in fixed costs. Fixed costs do not apply to them, though in most failed clinical negligence claims, Defendants are unable to recover their costs from the Claimant. It might be thought that this would be an incentive to settle obvious claims quickly, defend defensible claims properly and give injured patients a full and open explanation as to why their claim would not be successful. Most patients/clients will understand this and accept it if they feel the Trust is being honest and open with them.
People do know that in an organisation the size of the NHS things do go wrong that are no-one’s fault; experienced lawyers certainly do and can advise accordingly. No-one wants to spend years of their life with a claim that is doomed to failure hanging over them; they need access to proper legal advice to have that explained to them in appropriate cases. We have all had clients where, when we explain to them why we think their case won’t succeed have said “Do you know, no-one’s ever explained that to me before. If only I’d known that earlier…”. The unspoken phrase is of course “…..I wouldn’t have made a claim”. If access to advice is denied by the use of fixed costs, then these explanations will be denied as well.
We do not want to see access to advice and representation constrained by being unable to run a business shackled by fixed fees. Litigants in person (people representing themselves in a legal claim) will already rise when new laws for lower value personal injury claims take effect probably next year. Some people will be totally overwhelmed by the whole process and will be unable to pursue a perfectly valid claim. We don’t want to see this happening in clinical negligence claims, where people have been injured through no fault of their own by their very own National Health Service.
In any case, we already have a perfectly good system for Defendants to ensure that they do not have to pay excessive legal fees to Claimant lawyers. It’s called the “detailed assessment hearing”, whereby if the parties cannot agree on a figure for costs, the Court will assess the costs and decide for them.
Funny how that solution always seems to get overlooked when Defendants complain about Claimant costs. Contact me to discuss further.