Whenever legal reforms are mooted the target is generally the cost of claims. Later this year we will see some proposals coming from the Department of Health to look at fixing costs in clinical negligence claims.
In fact, we’ve had a clear indication of the Government’s mind-set on this in its ‘pre-consultation’ consultation, to which we are now finalising our response.
The recent NHSLA annual report showed legal costs increasing from £1.1 billion in 2013/14 to £1.4 billion in 2014 /15, coupled with an increase in the number of incidents. Whilst incidents are still thankfully rare, with under 0.5 per cent of NHS activity resulting in an incident, it’s clear something needs to be done. But note, the consultation later this year is unlikely to be looking at preventing injury as a route to saving money: fewer injured people, lower legal bills – you know it would make sense. But no, this consultation will be more along the lines of ‘we fear we may injure the same number of people – how can we spend less?’
Are fixed costs the answer? Fixed costs are a tricky beast. To have certainty around fee, you need to have certainty around process. To have certainty around process, the behaviour of both the defendant and the claimant needs to be controlled by protocol. If you can cost a process, you can fix a fee. Indeed, APIL along with other representative bodies proposed a fixed cost low value scheme to the NHSLA a couple of years ago, but were met with little enthusiasm at the time.
Fixing costs as a proportion of damages is more problematic. It assumes that cases that are worth less will cost less to run – there is some logic in this but it is not true in every case. It could render justified cases that are complex or harder to prove simply unviable to run. Victims who have been injured through no fault of their own will sadly be turned away as their cases are not viable. Bizarrely, it is often the defendant who is responsible for running up claimant costs – dragging cases out for years through not admitting liability or refusing to concede on points, leaving the claimant solicitor no choice but to start court proceedings, which is a very expensive way of doing business.
In APIL’s response to the pre-consultation, we’ve made the following points:
• That any fixed fee proposals should be sensible and bear some resemblance to the costs of actually doing the work;
• That any proposed process should control both defendant and claimant behaviour and give certainty of process whilst improving the claimant journey;
• That people with lower value claims should not be priced out of justice;
• That there should be recognition of the fact that claimant costs will be higher than defendant costs because the legal process dictates they do more of the work;
• That there should be recognition of the fact that claimant lawyers only get paid if they win: defendant lawyers are paid if they win or lose;
• There should be a recognition that just because a case does not succeed, it does not mean that it was wrong to start it, or that the lawyer was being opportunistic – clinical negligence cases are complex beasts and evidence gathering, expert opinion and investigation can change the prospects of success over time;
• There should be recognition of the value of proper representation for the injured person, who is (after all) vulnerable and not an expert in this area;
• That the Government should undertake a proper impact assessment of the likely effects of the proposals on the injured person.
It remains to be seen, of course, whether the Government will have taken any of these points on board when it publishes its consultation later this year. Yes, it’s a consultation about costs, but let’s not forget there are real people at the heart of this who have had their lives turned upside down. The objective should always be that a genuinely injured person gets the proper amount of care and compensation.