The Government’s proposal to enforce fixed costs in clinical negligence cases is based upon the flawed assertion that the costs of claimants’ solicitors are excessively high and disproportionate. Figures recently supplied by the NHSLA themselves via a Freedom of Information Act request have demonstrated that over a four year period (2010 to 2014) 7 out of 10 firms charging the highest costs to the NHS are firms who advise NHSLA on defence of claims (for example Kennedys who earnt £44 million over that four year period).This was revealed in a piece in the Telegraph newspaper on 11th July 2015 entitled “Medical blunders cost NHS billions”. If one considers that such defence costs are in addition to the cost of running NHSLA itself and the legal departments of the member Trusts, the overwhelming majority of costs to the NHS are those charged by defence organisations.
If therefore there is to be a full, fair, frank and open consultation on this proposal, the full extent of defence costs should be supplied and considered before any conclusions are drawn and decisions made in the consultation. Thus far this data has not been available or considered in the proposal.
We at HJA in conjunction with organisations such as AVMA and APIL are actively involved in the consultation and opposing the proposals on several grounds including this issue. For further reading, see Julie Say’s Blog on the impact of fixed costs on access to justice.