Government admits defeat in bid to introduce fixed costs in clinical negligence on 1 October

Gummer: implementation as soon as possible

Gummer: implementation as soon as possible

The government has admitted that it will not be able to introduce fixed recoverable costs for clinical negligence cases on 1 October as planned.

A letter from health minister Ben Gummer to the Association of Personal Injury Lawyers (APIL) acknowledged that the delay in publication of its consultation meant the implementation timetable was not achievable.

The consultation was first scheduled for last autumn but has been repeatedly delayed to the point where there was simply not enough time for a consultation and then amendments to the CPR to be made in time.

Mr Gummer said implementation would happen “as soon as possible following the consultation, in line with Civil Procedure Rules”. APIL would not release any more information from the letter.

An APIL spokeswoman said: “This will be a considerable relief to our members who will need time to prepare their businesses and provide clarity and certainty for clients about changes to how cases are to be costed and conducted.

“In the meantime, we will continue ongoing talks with the Department of Health about how the NHS can save money without compromising on access to justice for injured patients.”

One of the great unknowns is the upper limit of the proposed regime, with the government having mooted claims up to a value of £100,000 or even £250,000. The consultation will not be published before the EU referendum on 23 June.

Legal Futures understands that the Law Society, APIL, the Society of Clinical Injury Lawyers, and Action against Medical Accidents are in talks to resurrect a scheme first discussed with the NHS Litigation Authority four years ago for a fixed costs scheme for claims worth up to £25,000.

We reported last week that the senior judiciary has agreed with Lord Justice Jackson that fixed recoverable costs should not be introduced in clinical negligence cases in isolation, but as part of their extension across the entire fast-track and ‘lower’ end of the multi-track.

Julie Say, a partner and head of clinical negligence at Hodge Jones & Allen, said: “Ever since the October deadline was announced, it was obvious that any implementation was going to be too tight. I hope that the government will now allow a proper consideration of how clinical negligence cases are actually run before releasing any consultation.

“It would be very ill advised, if not downright irresponsible, for the government to introduce a fixed costs regime without adequate consultation, particularly given that the impact of the Jackson reforms is still to be assessed. As a consequence of the Jackson reforms, lawyers’ fees are already tightly controlled, capped and limited…

“The government should be looking at remedying underlying causes of negligence by, for example, providing proper, more regular training, if they want to reduce the negligence bill.”

The Forum of Insurance Lawyers has expressed regret at the news, however. Mike McKenna, a member of its clinical negligence sector focus team and partner at Hill Dickinson, said: “It’s a pity that other issues appear to have delayed the consultation but it’s obviously a topic still very high on the government’s agenda and we look forward to debating this important issue later this year.”

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