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View from a costs lawyer on the introduction of fixed costs in clinical negligence cases

Posted on 8th October 2015

Whether the figure is £100,000 or £250,000 damages, the introduction of fixed costs in clinical negligence cases is premature and unreasonable.

Premature: One of the major changes to costs since the Jackson report is the introduction of costs management and in particular budgets. It is unfortunate that the Court have been swamped with budgets particularly in the clinical negligence list because the Master’s have very much got to grips with the costs procedures and adopt a robust approach to the allowances for the various budget phases. The fact that the Courts are under resourced and short staffed has meant a temporary halt to the budget process which is unfortunate.

Sufficient time has not been allowed for the budget process outcomes to be assessed. This was a well thought out process introduced specifically to control costs. I believe that the efficacy of this process should be judged before any further process is introduced.

Conduct of NHS: The sad fact is that the NHS does not quickly or readily admit liability in all cases. I have seen countless cases that are fought when an early admission could have lead to a quick and, therefore, cheaper settlement. Such instances include cases where the hospitals own SUI is highly critical and then the matter is fought on liability by NHSLA.

There needs to be a thorough examination of the NHS approach to litigation as much as that of claimant lawyers. This is a fundamentally important point. Costs are driven up by the stance adopted by the NHSLA. To quote one correspondent: Fix the problem rather than fixing that which the problem has caused.

Quantum/complexity: Damages do not reflect complexity. The lower level damages claims are not simpler or less important. Take, for instance, a family that has lost a child. The damages are limited and all too often all that is really wanted is an explanation of what happened and perhaps an apology. These cases are often time consuming and complex. The introduction of fixed costs is likely to reduce the number of solicitors prepared to act on low value cases leading to a further erosion of access to justice.

The profession needs to join together and ensure their collective voices are heard in opposition to these plans when the consultation is finally launched.

Matthew Harman is costs lawyer at Harman Costs

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