Government plans to impose fixed costs on clinical negligence cases worth up to £25,000 “will prevent many cases being brought”, the Civil Justice Council (CJC) has warned.
The CJC said it was particularly concerned that the new regime for experts “may indeed prove to be a barrier to access to justice”.
In its newly published response to the Department of Health (DoH) consultation on fixed costs, which closed earlier this month, the CJC described as “highly undesirable” the use of a single joint expert at the pre-action stage.
“If the claimant has to use a single joint expert before any letter of claim (who cannot be asked to provide advice in conference etc) from a centrally held list, there will be a feeling of material disadvantage/lack of (even-handed) access to justice.
“Put simply, expert opinion is often needed before a letter of claim is issued. A big difference between clinical negligence cases and many other forms of litigation (such as personal injury) is that, save in the most unusual cases, the solicitor cannot advise as to breach without an expert report.”
The CJC said if fees for experts in cases worth under £25,000 were inadequate, then experts “may refuse to take instructions in these cases” and restrict their work to higher-value cases.
“The problem becomes more acute in areas of specialisation where there are fewer experts willing to undertake medico-legal work.
“A sum of £1,200 to cover a report, a conference and a joint report with an expert instructed on behalf of the defendant will not be thought by many experts to be adequate remuneration (particularly in some specialist areas) and the position is highly unlikely to allow more than one expert to be instructed, which is necessary in some cases.”
The CJC went on: “In many cases an initial report will cost £1,500 or more (in case of a specialism such as neurology often significantly more); so capping fees at £1,200 would be unrealistic on the current market (it is to be noted that there has been no analysis of expert fees), and would prevent many cases being brought, particularly in certain clinical disciplines.
“So the paper, whilst recognising the need to ensure that claimant lawyers are not deterred from taking on low-value cases, fails to adequately recognise the need to ensure that experts, critical in this type of litigation, are not deterred.”
The CJC said it was opposed to the “imposition of a flat cap for all expert witnesses” and the insistence on a single joint expert would require a “re-think” of the current pre-action protocol.
However, there was support for the introduction of fixed recoverable costs in principle, so long as the new regime was “structured and financed properly”.
The CJC said the results of the DoH consultation and the wider review of fixed costs by Lord Justice Jackson should be “pooled and analysed in full by the government before bringing forward finalised reform proposals”.
The council added that it regarded the upper limit of £25,000 as “appropriate” and welcomed the dropping of the suggestion that they should be applied in cases valued at up to £250,000.
The Association of Personal Injury (APIL) called earlier this month for a “predictable claim process” for clinical negligence actions if the government goes ahead with its plans.