It’s wrong that clinical negligence claims are being treated as a special case in extension of fixed costs, says Lord Dyson

Lord Dyson, the outgoing Master of the Rolls, has said that it is wrong that clinical negligence claims are being treated as a special case in the extension of fixed costs.

Speaking at a BPP Law school in Leeds after officially opening the new offices of The Leeds Law Society, Dyson also said that he had been convinced for some time that the scope of fixed costs in litigation needed to be extended to include all fast track cases and cases at the lower reaches of the multi-track.

He said that although assessed costs should be reasonable and proportionate, they were still too high, citing examples of costs he had come across at the Court of Appeal that made his “hair stand on end”.

“Sometimes the costs exceed the sums claimed – and by quite a margin,” he said. “It seems to me that that must stop.”

But Dyson said that it was “wrong in principle” that the Department of Health had stolen a march on other bodies in leading the way on fixed costs.

“It’s no surprise that the Department of Health has been at the vanguard of extending fixed costs up to £250,000,” said Dyson.

“But it seems that it is wrong in principle that clinical negligence should be treated as a special case. Defendants in all sorts of other litigation are just as concerned and exercised by the costs of litigation and have just as much of a keen interest to know what their liability is likely to be capped at by a fixed costs regime as anyone else.”

He also stressed that it was not part of his agenda to “drive lawyers away from litigation” and that he wanted a sensible regime of fixed costs to be rolled out. Screwing down costs to make litigation uneconomic for lawyers to get involved in, would be counter-productive, he argued.

“It certainly wouldn’t help the judges because all that would happen would be an even larger flood of litigants-in-person unleashed on the courts and we’re having difficulty enough with litigants-in-person as it is,” said Dyson.

Dyson added that one of the benefits of fixed costs would be a reduction in the need for costs budgeting.

“I am horrified that cost litigation is now a recognised specialism,” he said.

Mark Dugdale