Government working on fixed costs extension, says Faulks, as clinical negligence debate hots up

Dixon: shocking proposals

Dixon: shocking proposals

The government is investigating the extension of fixed recoverable costs across all civil litigation, including how to deal with differences between different types of litigation, civil justice minister Lord Faulks said yesterday.

It came as Law Society chief executive said she was “astounded” that the government would contemplate introduced fixed costs for clinical negligence claims worth up to £250,000.

Earlier this year Lord Justice Jackson called for the extension of fixed costs to all civil claims worth up to that figure. Speaking at the Association of Personal Injury Lawyers’ annual conference in Birmingham, Lord Faulks said the government supported the principle.

“In light of his comments, [the government] is now considering the way forward, including how best to deal with differences between types of civl litigation.

“No proposals have yet been put forward, and any proposals for the application of fixed recoverable costs to particular categories of claim will, of course, be subject to consultation.”

In a later panel session, Ms Dixon – former chief executive of the NHS Litigation Authority (NHSLA) – said the prospect of such a scheme in clinical negligence cases was “truly shocking” and was also discriminatory “because it impacts of those with lower earnings”. People who are claiming for that level of injury will have “significantly harmed”, she argued.

Ms Dixon continued: “Fixed costs can work well if set at the right level and applied to genuinely low value and less complex claims.” She said this would also mean that costs were paid out more quickly. But she added that the bigger issue for the NHS was to learn better from the lessons of claims and thus reduce their number.

On the same panel, Alan Hunter, director of claims at the NHSLA, said the high level of costs in “straightforward, low-value claims does stand out from the data”.

Bemoaning the increase in inexperienced solicitors bringing clinical negligence claims, Mr Hunter rejected criticisms that it is the NHSLA’s behaviour that delays cases and drives up costs. “I don’t think we’re too robust in defending claims,” he said.

It now seems inevitable that the government will have to ditch its plan to introduce fixed costs in clinical negligence in October 2016, as the consultation first scheduled for last autumn still has not been published and will not be until after the EU referendum on 23 June.

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

Meanwhile, away from the conference, the Forum of Insurance Lawyers (FOIL) called upon the government to press ahead with the extension of fixed costs on the fast-track and the lower reaches of the multi-track.

In the wake of Lord Justice Jackson’s speech, FOIL has set up a fixed costs working group to examine the draft proposals in detail, including for clinical negligence.

FOIL president Duncan Rutter, a member of the new group, said: “Lord Justice Jackson has set out detailed proposals for a fixed costs regime which he believed could be delivered within the course of this year, if the political will were there. It’s disappointing that we have seen only limited activity on the issue since then.

“FOIL sees real benefits in a fixed costs regime, not least in reducing the need for costs budgeting, which is clogging the courts at present. We are calling on the government to make progress on the issue – we hope that the work of the FOIL fixed costs working group will assist in developing a workable fixed costs regime in the near future.”

    Readers Comments

  • Phil says:

    The big issue in low value clinical negligence claims is liability, with breach of duty and causation both being huge and costly issues.

    Perhaps a fixed costs regime that factored in whether or not liability was admitted and if so when the admission took place would be a good idea, as this is probably of more relevance to the appropriate level of costs that the level of damages. It would also deter the costs building front loading frolic a lot of claimant solicitors embark upon.

    Any figures from the NHSLA for the effect of the Jackson reforms? some low value cases entirely under the new regime (no additional liabilities stricter proportionality) must have settled by now.

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