legal

Justice committee chair raises doubts about fixed costs in clin neg claims



A senior Conservative MP has expressed a ‘number of reservations’ about government plans to impose fixed recoverable costs on lower-value clinical negligence claims.

The Department of Health proposed in January to streamline the process for most claims worth up to £25,000 and cap the amount that lawyers can recover for doing this work. Consultation on the issue has closed, with no indication from the government about how quickly it might respond.

Speaking at the Society of Clinical Injury Lawyers (SCIL) conference, Sir Bob Neill MP, chair of the justice select committee, said he was not opposed to fixed costs in principle but that the current proposals may not be workable.

‘There has been very little impact assessment about the legal sector and [legal services] providers,’ said Neill. ‘I am concerned if we get to a stage where fixed recoverable costs drives people out of the market for smaller claims and that will not assist access to justice. You can’t always do these claims on the cheap. Of course we want to keep down needless costs but that doesn’t mean people who have suffered from negligent practice lose their right to claim – if we make it harder for them then I don’t think we are serving the interests of justice.’

Neill suggested that health and legal interests had ‘collided’ over the issue of fixed costs, but he stressed that the NHS would ultimately suffer if legitimate claims could not be brought. ‘There is the risk that unregulated people come into the market or CMCS who do not give a good service and you will end up with litigation that is not properly conducted,’ he warned. He noted that the ability to bring clinical negligence claims is important to ensure good medical practice.

Neill said the immediate focus of health ministers should be to look at the way NHS Resolution operates in defending claims, and to encourage NHS health trusts to be more transparent about their failings.

Delegates at the SCIL conference in Birmingham unanimously said they would consider stopping handling claims which fell below the £25,000 threshold. Fixed costs for claims at this level would be either unsustainable, it was suggested, or the shortfall in costs spent running the claim would have to be met by clients. 

Paul Rumley, chair of SCIL, urged the government to move its focus away from lawyers dealing with the fallout from problems long before litigation is necessary. He said: ‘Lawyers are downstream – we don’t make up or manufacture these cases and we didn’t create this. We need to get back to the more difficult question of why negligence happens.’



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