Legal profession reacts to proposed fixed costs cap for clinical negligence claims

The Association of Personal Injury Lawyers (APIL) and other groups representing the legal profession used the now-closed consultation on the proposed fixed costs cap for “lower value” clinical negligence claims and a new streamlined system to argue for significant changes. 

The UK government proposed a new cap “to ensure legal costs for lower value clinical negligence cases are proportionate and fair” earlier this year, claiming that such a system will save £500 million for the NHS.

The proposed cap will apply to “lower value” clinical negligence claims valued up to and including £25,000 in England and Wales.

A new streamlined process to ensure claims are processed more quickly, ensuring faster resolution and reducing the need to go to court, was also proposed.

In response to the consultation, APIL called the proposed changes “unfair and inconsistent”.

Suzanne Trask, executive committee member at APIL, continued: “Protected parties are excluded from other low value schemes, such as for road traffic collisions and workplace injuries, because of the complexity of their cases. Additional work is required to help people without the capacity to manage their own claims and it is extremely difficult to anticipate the amount of extra time and work required.”  

“And cases where patients have died at the hands of the NHS certainly need more time and greater sensitivity than is afforded by this scheme.”

APIL also criticised the proposed limits on costs available to pay for representation for injured patients under the new system, and the ethos behind the changes.

Trask said: “In the main, a streamlined two track approach to clinical negligence cases with a value of up to £25,000 has merit. But the costs have been proposed by the defendants, in a breathtaking display of self-interest, putting unfair restrictions on patients, bereaved families, and their representatives. The proposed fees need to be looked at again, urgently.”  

She added: “In its obsession with the financial cost of clinical negligence to the NHS, the government repeatedly fails to recognise that the NHS’s negligence is the reason why patients must claim compensation for their injuries. Yet again, any effort to tackle that problem is conspicuously absent from this consultation.” 

The Chartered Institute of Legal Executives (CILEX) said in its response to the consultation that introducing fixed recoverable costs for clinical negligence claims valued up to £25,000 will imperil access to justice by limiting victims’ ability to achieve the redress they deserve.

CILEX chair Professor Chris Bones said: “Whilst we recognise progress has been made since the initial consultation on fixed costs almost five years ago, concerns over access to justice and the ability to of victims to gain redress still remain.”

“Faster resolution for claimants is something we all wish to see but this cannot come at the expense of the ability to make that claim in the first place. As it stands the scheme risks drastically shrinking the pool of lawyers available to take on such work, limiting the ability of victims to seek redress and removing the opportunity for the NHS to learns valuable care lessons as a result.”

The Association of Costs Lawyers (ACL), meanwhile, argued that the proposed new process, which aims to speed up how these claims are handled, should be introduced on its own without fixed recoverable costs (FRC) “to enable a full and proper analysis to take place as to efficacy of this proposal and to also consider the potential costs savings”. 

It said: “The ACL believes that this will achieve the intended objectives as set out in the consultation whilst avoiding the implementation of a FRC scheme. The ACL considers that a FRC scheme is wholly inadequate when applied to clinical negligence claims due to the significant negative impact it will have on the access and administration of justice and certainly with claims involving vulnerable and protected parties.”

A survey of its members found most believed costs would fall through implementing a new process: “There are concerns that FRC are never suitable for clinical negligence matters given how different each claim can be and the unique investigations that need to be conducted. An overwhelming majority of respondents considered that the FRC proposed are not fit for purpose.”

Kris Kilsby, the ACL council member who headed up the working party that drafted the response, said: “Though we recognise that the government wants to reduce what the NHS spends on clinical negligence claims, this debate boils down to what is right for the injured person. These claims may be relatively low value, but they are not low impact and negligence victims need to be able to seek justice.”

“Fixed recoverable costs are a very blunt instrument that may work in areas where the course of claims is relatively predictable—such as road traffic accidents—but not in a much more complex area like clinical negligence.”  

“Our members are experienced and knowledgeable about costs and are able to greatly assist the court to ensure that costs in such cases are kept to reasonable and proportionate amounts. Introducing FRC will remove this level of check and balance and could lead to unjust results in respect of costs recovery which could ultimately lead to an impact on access to justice.”