The government has accepted Lord Justice Jackson’s recommendation that the Civil Justice Council (CJC) be tasked with negotiating a new bespoke process and fixed costs regime for low-value clinical negligence claims, it emerged yesterday.
The Department of Health first started considering fixed costs in clinical negligence in the summer of 2015 and earlier this year scaled back its ambition to capture cases worth up to £250,000 to a threshold of just £25,000.
Richard Heaton, permanent secretary of the Ministry of Justice, told MPs on the public accounts committee that “the more that we can make costs foreseeable, clear and proportionate, the more we will bear down on the costs incentives on solicitors to bring cases of this sort”.
Mr Heaton was giving evidence to the committee on managing the costs of clinical negligence in NHS trusts.
He said “the traditional view has always been that that’s been too difficult in this area because it is too complicated, you’ve got lots of experts, and a grid of fixed costs is just not going to work. And that was the sort of response my department and [the Department of Health] received to the consultation we worked on earlier this year.
“The Civil Justice Council said it’s too rough and ready, it’s going to get in the way of access to justice.
“Instead Lord Justice Jackson [in his report in July] said, ‘Why don’t you try cracking the process for these claims and make that more streamlined? If you can do that, then it’s fair enough to put a fixed recoverable costs regime on that’…
“That is a recommendation that I’m pleased to say that ministers have accepted and that’s what we’re going to do.”
Jackson LJ said in his report of extending fixed recoverable costs that the scheme would capture most clinical negligence claims.
“Previous experience (for example, with noise induced hearing loss claims) shows that it is possible for the ‘industry’ to come together and develop such schemes,” he wrote. “There is sufficient good will on both sides to achieve that in the field of clinical negligence.”
Speaking more broadly, Mr Heaton said there were signs that the “high water mark” of claims has passed thanks to the 2013 civil litigation reforms.
“The next big thing we can do – and my department cares a great deal about costs across the board and disproportionate costs really impede to access to justice – is to try and extend fixed recoverable costs to as many areas of civil litigation as possible.”
There was also discussion of ADR in the session, with Helen Vernon, chief executive of NHS Resolution, saying that some claimant lawyers were resisting the push for greater use of mediation.
She said that 71 cases have been mediated since NHSR put in place its mediation panel last December.
“Of course they want to take full-blown litigation to court because they can increase their fees by doing so,” said committee member and Conservative MP Geoffrey Clifton-Brown.
Mr Heaton said: “I don’t think ADR is working very well in civil litigation at the moment.”