Clinical negligence specialists flock to new society for guidance on post-LASPO world

Webber: clinical negligence should not be in the same category as other personal injury work

Nearly 100 law firms have already signed up to a new society for clinical negligence specialists that aims to help guide them through the post-LASPO world.

Stephen Webber, head of medical negligence at Hugh James, has established the Society of Clinical Injury Lawyers (SCIL) in response to the “uncertainty” in the personal injury sector.

Mr Webber said SCIL will build on the “excellent work” done by the Association of Personal Injury Lawyers (APIL) and Action against Medical Accidents (AvMA) in lobbying for victims of medical negligence.

Mr Webber said: “They are two good organisations supporting victims, patients and lawyers in training and lobbying. This society is very specific to clinical negligence to assist lawyers to represent their clients.

“It is about how lawyers can cope with the reforms to make sure the act in their clients’ best interests. It is for the clients, but really to ensure the lawyers can carry on working in this field. There is a real risk that good specialist firms will drop out of doing this work altogether.”

To become a member, lawyers or firms must be on the Law Society or AvMA specialist panels or have their application pending, with proof of experience.

Mr Webber also expressed concern that non-specialist personal injury firms were straying into clinical negligence without the required expertise because they were being forced out of other areas deemed less profitable following the Jackson reforms.

SCIL will help members with documentation compliant with new court procedures and by sharing information as the courts try and interpret the Jackson reforms.

Crucial to the society is to ensure member firms continue to be “financially viable” and give their clients access to justice.

However, Mr Webber told Litigation Futures the breadth of challenges facing clinical negligence claimant lawyers amounted to a ‘perfect storm’.

He said: “Most of the changes are in relation to reducing cost – but is that at the expense of proper representation? What is in the interests of justice is not the biggest issue now; the government is more concerned about the cost and speed it seems, rather than making sure the outcome is right.

“I don’t dispute that if we can speed the process up that is a good thing, but some cases, particularly clinical negligence, take time. It costs a lot for a claimant to prove a case, whereas the defendant doesn’t have the same burden.

“The starting point of these reforms was RTA – the government perceived that world was out of control, but this sort of work is very different and shouldn’t be pushed into the same category as other personal injury work.”

Mr Webber said the changes relating to cost budgeting, after-the-event (ATE) insurance premium recovery, proportionality and costs generally have created the uncertainty.

SCIL have sought the assistance of a leading QC to draft post-Jackson compliant conditional fee agreements (CFAs), and are advising on what ATE insurance is available as well as investigating the possibility of disbursement funding options.

Mr Webber continued: “Legal aid has basically been removed, other than for very specific birth injury cases – and then it is capped. We are also facing limits on legal aid rates for experts, such as a maximum of £135 per hour for a neonatologist.

“This is very important in clinical negligence cases because you need someone of real esteem if you are going to allege negligence against another doctor. You can’t just have a run of the mill consultant, and the defendants will have the expert of their choice, instructed by the NHS Litigation Authority.”

Mr Webber said changes to CFAs with success fees paid by the client and insurance premiums only partially recoverable from the defendant represents another challenge, as does cost budgeting set by courts.

He added: “Previously, we would have to justify the costs in front of a judge at the end of a case. Now a court will try and predict how much a firm can spend on a clinical negligence case which may run for the next three or four years.

“Then there’s the issue of proportionality over what is necessary. For example, to bring a case to trial of a three-day old child that dies may cost more than the relatively modest £15,000 payout the client may get – does that mean it is not proportionate to bring that claim? There is no guidance.

“There’ll be a lot of claims that cannot be pursued. Lawyers will take on cases and run them and not get paid. That will set a precedent, but these cases have got to get to the Court of Appeal first, which means we’ll be in this state of uncertainty for at least the next 18months to two years.”

The next meeting of SCIL is on 22 May 2013.