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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