The Association of Personal Injury Lawyers (APIL) has said it can “see the rationale” for fixing medical negligence fees for claimants in cases worth up to £25,000, where the NHS Litigation Authority (NHSLA) admitted liability.
The upper limit being considered by the Department of Health (DoH) for fixed fees is £250,000.
APIL said other personal injury claims already had fixed costs for claims up to £25,000, the fast-track civil claims limit was £25,000 and the limit would cover those injuries “most likely to resolve within 12 months of the incident”.
Responding to a DoH pre-consultation letter, the association said: “Even within the cohort of claims up to £25,000 in value, certain cases should be exceptions to the fixed costs regime: fatal claims, still-births, claimants lacking mental or legal capacity, claims where the claimant has a very short life expectancy.
“APIL has always been prepared to discuss fixed costs for minor claims. Indeed, we worked with the NHSLA in 2013 on a proposed low-value clinical negligence claim scheme until the NHSLA refused to negotiate further.
“Claims valued at more than £25,000 involve life-changing injuries and putting fixed costs on those cases reduces the quality of the access to justice for those injured people, by limiting the amount of work the claimant representative can afford to do to prove liability and/or causation, for example.
“This can be avoided by ensuring the fixed costs regime applies only to cases where the defendant admits liability in accordance with the pre-action protocol.”
APIL said that in existing low-value fixed fee regimes for road traffic, employer’s liability and public liability cases, ‘low value’ meant £25,000 – a figure “dwarfed” by the £250,000 top limit suggested by the DoH.
The association argued that claims valued at between £25,000 and £50,000 were “often complex, requiring several experts”.
The DoH also recommended that experts’ fees should be capped in lower value cases.
“If there is to be capping of expert fees, then they should be capped for both claimant and defendant,” APIL said. “There should be a level playing field with both sides of the litigation process equally restrained on the number and cost of their experts.”
The association concluded: “If a claim is properly investigated by both sides in the pre-issue stage, more often than not it should be possible to avoid litigation and keep costs down.
“As it is, the scheme proposed here by the DoH offers no incentive to the NHSLA to engage in constructive pre-issue negotiations and to settle early and instead creates an artificial incentive for the claimant to issue proceedings.
“Parties will become polarised and the benefits of the new clinical negligence pre-action protocol will be lost. We predict that there will be a substantial increase in the numbers of litigants in person, as firms turn away low-value claims. It is doubtful that any money will be saved.”
APIL added that the government had allowed no time for changes such as the new clinical negligence pre-action protocol, the LASPO limits on recoverability and costs budgeting to take effect.
“We question why, in the light of those changes, these proposals are being brought forward now. An opportunity has been missed to wait for the effects of changes already implemented to bear fruit.”