Solicitor Bhavesh Patel considers the recently published consultation on fixing costs of investigating some clinical negligence cases. The strategy is to reduce the cost of clinical negligence claims to the NHS – but what impact will the current proposals have on access to justice?
At present, the legal costs associated with investigating a clinical negligence case are, if the case succeeds, assessed following the conclusion of the case, and paid by the Defendant in the case (usually an NHS Trust or other medical professional/organisation). There is no specific limit at present on what costs can be claimed but, generally, the costs must be reasonable and proportionate to the issues in the case, including the amount of compensation at stake and the complexity of the case.
Health secretary Jeremy Hunt recently announced the details of the fixed costs regime for clinical negligence cases, which would be mandatory for all claims worth up to £25,000 in compensation. This means that the for those patients pursuing such claims, the level of investigation that can be undertaken would be limited to what could be achieved by the amount of costs fixed by the proposal. The consultation paper puts forward the following fee options:
In my opinion, there will be some cases that are simply not suitable for fixed recoverable costs and failing to pursue them will lead to injustice. At the very least, exemptions should be applied to cases that are particularly complex, or those that involve still-birth and bereavement.
It is difficult to define a ‘complex’ case, but it can be said with conviction that the level of damages does not necessarily indicate the complexity of the matter. Factual and legal complexities need not be proportional to the damages claimed.
In respect of damages for bereavement, they are fixed by the government at a figure well below £25,000.00 and therefore if exemptions are not applied, it will restrict the ability of families who have lost a loved one to pursue a claim.
Law Society president Robert Bourns has stated “draft plans could see harmed patients denied the correct level of compensation unless the proposed scheme excludes complex cases and includes exemptions for unusual circumstances.”
The government has not addressed how the NHS Litigation Authority contributes to increased legal costs by unreasonable approaches to claims, such as resisting payments on account of damages where liability has already been admitted or continuing to use the ‘deny, defend and delay’ approach, increasing the costs incurred by the Claimant’s legal team.
Surely the approach to take would be to reduce the number of mistakes in hospitals, by providing better training, adequate staffing levels and robust procedures which will reduce the numbers of claim and in turn the amount of compensation paid out, and costs paid to Claimant solicitors. In the long term this will save a large amount of money as well as human lives, the cost of which of which is far greater than any NHS budget.
Another method where action can be taken is to implement sanctions where there is a failure by hospital staff to follow the duty of candour and not willingly reveal things when they go wrong. In my experience, some patients only pursue claims because they have not had an honest explanation about what went wrong with their treatment, and an apology.
This does bring the question of whether if the above is implemented, would fixed costs still be necessary? There is an argument that they are not needed at all as the Courts are already taking a proportionate and pragmatic approach to costs budgeting. In the recent case of BNM v MGN Ltd  it was made clear that costs can be reduced to a fraction of the reasonable or necessary costs by applying the new proportionality test. If costs judges are already considering proportionality and managing costs, is there a need for further restriction on costs?
The reality is that clinical negligence law is a very complex area which requires a great deal of in depth investigation and extensive evidence, and you cannot accurately fix the level of costs required just by reference to the final compensation paid.
Fixed costs will not only restrict an injured patient’s ability to bring a claim, but also may breach the Human Rights Act 1998, Article 6 (1) (ECHR) as in effect, individuals may not be able to obtain access to legal advice and representation.
Reduction of legal costs can instead take place by using alternative methods such as having an increased focus on improving the standard of medical treatment and ensuring early admissions are made by the Defendant in appropriate cases.
If however fixed costs are to be implemented, it must make the relevant exemptions to cases that involve complexities, stillbirths and bereavement.
The consultation is due to last for a period of 12 weeks, closing on 1 May 2017, and my colleagues and I will be providing information to respond to the consultation, and following the developments with interest.