The NHS Litigation Authority (NHSLA) is to press the government to set the threshold for cases subject to fixed recoverable costs at £100,000, rather than the proposed £25,000, Litigation Futures can reveal.
There were some sighs of relief from claimant solicitors at the Department of Health consultation issued last week, given that it had originally been looking at an upper limit of £250,000, although also concerns that it was taking place before the outcome of Lord Justice Jackson’s review of fixed recoverable costs, among other relevant reviews.
Sir Rupert is now conducting a series of meetings around the country to gather views, and at one of them earlier this week, John Mead – the NHSLA’s technical claims director – said the authority wants a £100,000 limit.
In a statement to Litigation Futures, NHSLA chief executive Helen Vernon confirmed: “We support the Department of Health’s consultation on fixed recoverable costs, as we believe this approach will help tackle disproportionate costs charged by some less reputable claimant solicitors.
“In our response to the consultation we will advocate a fixed recovery costs regime up to £100,000, potentially followed by extension to £250,000 following a review and welcome this formal opportunity to do so.”
It is unclear whether the NHSLA is adopting a two-pronged approach by trying to convince both the Department of Health and Lord Justice Jackson of its position. However, it would seem unlikely that, if the government does not agree and keeps the limit at £25,000, any recommendation by Lord Justice Jackson to increase it would carry much weight.
Agata Usewicz, a clinical negligence lawyer at London firm Hodge Jones & Allen, said: “Even with the proposed cap set at £25,000, there remains a real risk that vulnerable and already disadvantaged groups of people will simply not be able to access justice.
“To go further than the government proposal, to a £100,000 cap, would be potentially disastrous, leaving countless victims of medical accidents with no means of redress.”
However, Ms Usewicz said she was not surprised that the NHSLA was seeking to push for a higher cap.
“Fixing fees at this level on the claimant side would see an inequality of arms that would balance the scales firmly in the NHSLA’s favour. My experience is that legal bills are often massively increased as a result of the NHSLA’s failure to admit liability at an early stage and that much of the work carried out by a claimant’s solicitors becomes necessary solely due to the manner in which the defendant conducts its case.
“The role of the NHSLA in pushing up the cost of litigation has long been ignored and with the government focusing firmly on claimant lawyers’ costs, the NHSLA can continue to avoid addressing the need to change its ‘deny, delay and defend’ culture.”
Steve Webber, chair of the Society of Clinical Injury Lawyers, said the statement was “very revealing”. He explained: “The NHSLA has clearly learnt nothing. By issuing the consultation now, the Department of Health is conspiring with the NHSLA and snubbing Parliament which has asked the National Audit Office (NAO) to investigate why the NHSLA is presiding over such a mess on costs.
“Capping costs allows the NHSLA to continue with their culture of defend, deny, delay, and risks removing specialists from the legal scene and allowing bad practice to continue by clinicians and the NHSLA.
“I agree with Lord Falconer, former Lord Chancellor, who says that it is ‘absurd’ not to wait for the NAO to report in July. Do we want the NHSLA just to stay as before? No, that is not in the public interest.”
A Law Society spokeswoman said: “In our view, the Department of Health was right to conclude that fixed costs would not be appropriate for cases in excess of £25,000, following its pre-consultation engagement. One of the largest drivers of claimants’ costs is defendants’ behaviour in litigation. That has to be recognised in any fixed-costs regime.”