A more than half empty glass

Lord Justice Jackson’s review of civil litigation recommends introducing fixed recoverable costs for clinical negligence claims with damages of £25,000 or under. It could have been much worse, with some calling for fixed costs for cases up to £250,000.

Jackson LJ clearly listened – to a certain extent – to the arguments put forward by claimant lawyers and ourselves. We speak up for the victims in all of this – the claimants themselves. However, as far as we are concerned the glass is distinctly more than half empty following Jackson LJ’s review. There is no escaping the fact that imposing fixed costs would hamper rather than help access to justice and harm patient safety.

Ultimately, it is some of the most vulnerable people in society, whose lives have been ruined by perfectly avoidable lapses in patient safety, who will lose out – not their lawyers. Stillbirths and neonatal deaths, older people’s deaths, and mental health cases are the kinds of claims which may no longer be feasible if these proposals go ahead.

Jackson LJ has not addressed the root causes of high costs and if the Department of Health seized on his recommendation it would have serious, unintended consequences. The simple fact is that the incidents themselves could and should be avoided, but even with those that slip through the net, litigation could be avoided altogether if good investigations were carried out and the NHS recognised its failings and offered to resolve disputes earlier. Legal costs only become an issue if the heath service defends the case only to ultimately settle later.

Far too many cases are defended unreasonably and for too long, adding unnecessary costs as well as further misery for victims. Jackson LJ gives scant attention to the role of defence lawyers in creating the problem. No consideration has been given to bringing back legal aid for clinical negligence cases. Even the NHS Litigation Authority (now called NHS Resolution) agreed that legal aid was a more cost-effective way of funding claims than the ‘no-win, no-fee’ regime the government has forced upon would-be claimants and the NHS.

The effect of imposing fixed costs on clinical negligence claims – even those below £25,000 in compensation – would be to deny access to justice to many vulnerable and deserving people in some of the most serious cases. For example, even an avoidable stillbirth caused by negligence is often worth less than £25,000 in compensation. The courts award compensation based on financial loss or care needs, not on the seriousness of the mistake. The same applies to other serious cases such as the avoidable death of older people. These cases can be just as complex and difficult to litigate as cases with far higher payouts.

If a cap is placed on how much of their costs can be recovered, no matter how long or how unreasonably the case is defended, it simply will not be feasible for claimant lawyers to take on many cases. Even if it were possible to take on such a case and it was successful, the plan would prevent lawyers from reclaiming their costs from the losing party, meaning the patient or their family would end up having to pay for their representation out of their own compensation, possibly eating up most of it.

However, this is not just an access to justice issue. These proposals would incentivise a ‘deny and defend’ culture, with defendant lawyers being safe in the knowledge that if they defend a low-value claim, the chances are that no lawyer will be prepared to fight the case.

This would lead to lost opportunities to learn from mistakes. Bear in mind that all the clinical negligence cases involving high legal costs are those where the NHS has unsuccessfully defended the claim, usually because it does not recognise it was at fault until the claimant forces the issue and introduces compelling evidence. The absence of learning from these cases would make your local hospital and mine less safe. Take stillbirths and neonatal deaths as an example. Around 15 babies die every day in the UK – one of the worst rates in the developed world.

One positive to take from Jackson LJ’s review is that he recommends a collaborative approach and a ‘standalone’ scheme for fixed costs in clinical negligence. This is certainly a more positive approach than the DoH simply imposing what suits it. It remains to be seen how the department will react both to the review and the responses to its consultation on fixed costs which ended in May.

Peter Walsh is chief executive of Action Against Medical Accidents

@AvMAuk www.avma.org.uk