The Department of Health and Social Care has confirmed its intention to fix the legal costs payable by defendants in ‘lower value’ clinical negligence claims (i.e. those where compensation is up to £25,000).
The Department of Health issued a consultation on this issue in January 2017. Fixed costs have already applied for some years in a number of other types of personal injury claim where compensation was no more than £25,000, such as those arising from accidents on the road or at work.
Out of the 167 responses received, 58% disagreed with the proposal to introduce fixed costs in lower value clinical negligence claims. Among the main arguments against the proposals were:
- fixed costs would affect the ability of injured people to access legal representation and so obtain justice (and appropriate compensation). In particular, this was a concern where compensation could be modest but where the issues were of huge personal and public importance (such as in cases involving the death of children).
- clinical negligence cases are more complex than other types of personal injury claims and require a good deal of investigation (and consequently legal expense), no matter what the potential compensation.
- there needs to be greater focus on improving patient safety and preventing the incidents which give rise to clinical negligence claims, rather than limiting the costs which are payable when claims succeed.
A working group will be set up to devise the fixed costs regime. It is intended that its recommendations will be published in Autumn 2018.
The Secretary of State, Jeremy Hunt, has acknowledged that the best way to reduce legal costs in this area is "to reduce patient harm in the first place". It remains to be seen what measures the government will put in place to try to achieve this.