Fixed costs proposals in clinical negligence claims based on flawed logic says Hodge Jones & Allen
Firm calls for the ‘delay, deny, defend’ culture in the NHS to be tackled
The Department of Health’s proposal to fix recoverable costs in low value clinical negligence cases would restrict access to justice for the most vulnerable in society and have a significant impact on patient safety warns leading London law firm Hodge Jones & Allen in its response to the government’s consultation ‘Fixed recoverable costs for clinical negligence claims’.
The proposals, which would apply to claims worth below £25,000 are, the firm says, based on inaccurate cost estimates, fanciful time analysis and flawed logic, including the false premise that lower value claims are by nature less complex, the view that sufficient expert evidence in such cases can be obtained for under £1,200 and that particulars of claim in complex cases can be drafted by junior fee earners.
The firm calls on the government to put proposals on hold until an independent and transparent review of the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which implemented Lord Jackson’s reforms, has been undertaken and the findings of the current National Audit Office (NAO) investigation into NHS Resolution (formerly the NHSLA) have been published and considered in detail.
For it to be viable for solicitors to take on cases under a fixed fee, the firm contends, they would need to be straightforward cases with only one defendant that require no more than one expert report, two witness statements and an admission of liability.
In addition to proposed exemptions for child fatalities, all other vulnerable groups must be covered including those with disabilities and mental health issues, the over 65’s, prisoners and other individuals detained by the state as well as all fatalities.
Failure to understand and take account of the work that is required to prove negligence in cases involving vulnerable victims which are by their nature the most complex, risks leaving them with no means of redress and will impact patient safety, explains Agata Usewicz head of medical negligence at Hodge Jones & Allen:
“Aside from the impact on individuals, there will be a long-term impact on patient safety due to important cases not being brought. There is a great deal of evidence to suggest litigation can drive the development of better practice, hold institutions accountable and be a force for change. It is not just about compensation that helps to rebuild lives; the process can identify systemic failings, ensure that sanctions are taken against poor and negligent doctors, promote early diagnosis and lead to significant changes and improvements in healthcare. If important cases are not brought, patient safety will ultimately suffer.”
Citing examples from its own caseload, the firm’s consultation response highlights the need for behavioural change at NHS Resolution to move away from the current ‘delay, deny, defend’ culture that predominates. The proposals, which come ahead of a NAO report into NHS Resolution, do little to incentivise early settlement and instead build in an ‘inequality of arms’ whereby claimants have access to far more limited resources than defendants in order to prove their case.
The firm recommends that the government wait for an analysis of the NAO’s findings before progressing with these proposals and states the need for stronger sanctions for delays by the defendant. These could include exiting from the fixed costs scheme and/or incurring cost penalties if there is a failure to comply with the pre-action protocol without good reason and if there is a failure to provide timely and adequate disclosure of medical records.
The firm also highlights the fact that the government should not be introducing a fixed costs regime at a time when the impact of the Jackson reforms is still to be assessed.
Agata Usewicz says, “As a consequence of the Jackson reforms, lawyers’ fees are already tightly controlled, budgeted, capped and limited. Costs already have to be “reasonable and proportionate” before they are paid by the insurer or NHS and the courts rightly already hold the power to reduce any bill found to be excessive.
“To seek to introduce further and somewhat draconian changes without waiting to see whether the introduction of costs budgeting will lead to the necessary improvement must, from any angle, be considered to be somewhat misguided and misconceived.”
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Notes for Editors
Hodge Jones and Allen
- Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice. Its managing partner is Patrick Allen.
- For almost 40 years’ the firm has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
- The firm’s team of specialists have been operating across: Personal Injury, Medical Negligence, Industrial Disease, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud, Social Housing, Wills & Probate and Property Disputes.
- Co-founder Patrick Allen is still at the helm of the firm he co-founded in 1977.
- In 2016 the firm launched Hearing their voices – a campaign to raise awareness and build conversations around the issues and the injustices we might all face.