Fixing the amount of Costs in Clinical Negligence Claims

Our solicitors and indeed the profession have awaited with some dread Lord Justice Jackson’s review of costs in civil matters which includes clinical negligence claims. It was suggested that there should be a fixed amount of costs allowed for claims up to a certain value, whether it is a contract dispute, a neighbour dispute or a complex clinical negligence claim. This was worrying because this took no account of the very individual nature of clinical negligence claims, where each claim, like each person is very different. Two people could, for example, have suffered the same mistake or be misdiagnosed with the same condition but the reasons for this, the investigation and the effect on them can be completely different needing an individual approach to each claim. It was always our view that a “one size fits all” system would only lead to people being denied the thorough investigation they deserve.

The costs paid by the defendant that the media and the NHS repeatedly complain are too high and who portray solicitors as “bleeding the NHS dry” are not a “windfall” for solicitors as has been claimed. They include the costs of multiple medical experts whose involvement can in large value cases cost tens of thousands of pounds and the fees for specialist barristers to advise on the case and represent the Claimant at Court. Cases proceeding to Trial involve solicitors’ costs for work over generally 3-6 years, some even longer. Limiting costs available to pursue a claim can, in our opinion, only result eventually in being unable to properly investigate a claim. Being denied the opportunity to fully investigate and subsequently being denied justice could result in the loss of the much needed compensation that allows those injured to live with the effects of the negligence and improve their life.

Lord Justice Jackson’s review, published in July, has recommended many changes and has thankfully rejected a “one size fits all” system. However the most significant proposal for the work we do is to suggest limiting the level of costs for Clinical Negligence work in cases with a value of up to £25,000. At each stage in the case there will be a fixed amount of costs available. This is not ideal and will include cases which are very complex and emotional to investigate but lower in value such as errors causing the deaths of children. It remains to be seen how or when this process will be finalised and there is a lot more work to be done before then but it is clear there will be implementation in the future of a fixed amount of costs to some clinical negligence cases.

Here at Armstrong Foulkes our solicitors are always available to discuss a potential case and advise you of your options irrespective of the value or level of injury. Please do not hesitate to contact us for a free no-obligation chat on 01642 231110.

Joanne Davies – September 2017