Minister hints at flexibility over £250k clin neg costs limit

Topics: Costs, fees and funding

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  • Ben gummer

The government has reiterated its backing for fixed costs in clinical negligence cases but hinted that it may be prepared to be flexible about the upper limit.

Speaking during a Westminster Hall debate yesterday, health minister Ben Gummer (pictured) insisted fixed costs can help overhaul the entire litigation system and, in clinical negligence, ensure improvements in medical practice.

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The government’s pre-consultation on the issue finished months ago and a formal consultation is imminent. The Department of Health continues to maintain that any reforms can be implemented by October.

Gummer stressed that faults with the present system lie with both claimants and defendants, and he was candid about the NHS Litigation Authority’s performance in admitting liability early.

‘I intend to change the balance for the NHS Litigation Authority and for claimant lawyers, to ensure that we get to a single version of the truth as early in the process as possible,’ said the minister.

‘Many claimants have been immensely frustrated - as have the clinicians involved - by the length of time that trusts and the LA have had to respond to claims, the length of time it often takes to reach a resolution and the fact that there is often too much defence, delay and prevarication.

‘At the same time, I have full confidence in the NHSLA’s current management, because I have seen a real determination to get to grips with the problems it inherited and change the authority into something far more fit for purpose.’

Gummer said the system is constructed to encourage claimant lawyers to 'stack' costs at the early stage of a claim, although he denied this was a ‘deliberate and malicious’ intention.

The minister said the proposed upper limit of £250,000 was not arbitrary, but chosen based on the original intentions of Lord Justice Jackson’s review of civil litigation costs in 2010.

‘In trying to draw a line somewhere, we felt that that was an appropriate place, given his recommendation to do so. That is, however, subject to consultation. We want to hear the full range of views about where the limit should be placed.’

Conservative MP Sir Edward Garnier QC had tabled yesterday's debate to urge the government to think carefully before rushing into any decision over fixed costs.

He stressed that claimant law firms already reject 90% of clinical negligence inquiries and that a £250,000 fixed fee regime will dissuade them from helping more claimants, making many meritorious cases unviable.

He pointed out the NHSLA’s operating costs have fallen in recent years, while the authority’s figures suggesting an increasing average cost per case were ‘misleading’ and based on inadequate analysis.

Garnier attacked the NHSLA for not settling claims early enough and increasing claimants’ costs as a result.

‘Not all medical negligence claims are straightforward, but proving what went wrong is not made easier for a claimant’s lawyer when the NHS holds all the information and is reluctant to disclose it,’ he said.

‘On far too many occasions, cases that could have been settled more quickly, cheaply and satisfactorily are not, because the NHSLA withholds information, does not respond in good time to requests for information, or simply fails to apply its collective mind to the best way of dealing with the complaint.

Readers' comments (12)

  • What on earth is the health minister doing wading in on policy debates relating to civil justice? And how on earth will fixed fees translate to improved medical practices?

    What an utter load of Tory tripe.

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  • The health minister might do better to concentrate on his own portfolio and not dabble in policy debates relating to civil justice!

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  • Comforting at least to see that someone is taking this issue seriously in the House. Hopefully Sir Edward Garnier's comments will be taken on board by those at the MOJ who appear intent on ignoring the rank and file of the professions.

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  • Quite amazing now how the Govt.., are deciding what Courts are used by whom against whom at what cost.

    They don't yet dictate which lawyers and judges are used ... yet .... but they are working on it .....

    Welcome to Zimbabwe.

    And the Law Society and Bar Council?

    not a bean.....

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  • So someonewho will be a defendant, with no experience in law, and most likely unqualified is going to have a say as to how much costs they have to pay as a defendant, and want to pay less than they are now.

    I think that's called:

    (a) a conflict of interest and

    (b) absolutely ridiculous

    isn't it?

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  • See my comments above Paul.

    You have one choice of one Court, one lawyer and one Judge and you have no say in what that costs or what you can recover if successful.

    So even Stalinist Russia puts us to shame now.

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  • Perhaps Mr Gummer is showing the after-effects of having taken a bite from his sister's mad cow burger all those years ago...

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  • Only the dumbing down of the population and legal profession is to blame here....

    Mind you, I don't need the Court's, so I am off back to my X Factor....

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  • Having worked in this area for 20 years I can safely say that the delaying tactics of the NHSLA and their panel solicitors beggar my belief, even now, after witnessing it for two decades.

    Their conduct leads to the most horrendous and avoidable waste of taxpayers' money which deprives the most vulnerable of proper rehabilitation.

    'North Korea' doesn't begin to describe their conduct. This is a part of the Government quango system that needs radical overhaul to save millions of pounds.

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  • Fixed costs is not necessarily the end of the world. It depends upon the amount of the fixed costs at each stage of the case. Having a budget to work is good discipline in any events. Those of us who are experienced clin neg practioners will, I suspect, find a way of working within a budget. Further if disbursments are outside of the fixed costs - then dump the grunt work on barristers. Regretfully newly called barristers have a lower hourly charge rate than most paralegals.
    In any event, it will be wonderful to get paid quickly at the end of the case because - hey - its fixed costs!!
    Also why bother with Costs Budgeting and Precedent H? Surely that will go as well.
    As to there being no choice of judges and costs - wrong. Go to mediation and chose your own judge!
    Finally, if you do your job well, you can Part 36 the Defendant at an early stage. If they accept then - hey - you get fixed costs. If you turn down the offer and you recover more at trial - then fixed costs don't apply in any event.
    Come on boys and girls. Stop with the negative vibes! Look at it as an opportunity! I do.

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