A group of medical charities has urged the government to postpone plans for fixed recoverable costs for clinical negligence cases.
In a joint letter, the charities say ministers must let the effects of the Jackson reforms introduced in 2013 sink in and warned that some victims could be left without any legal representation.
The signatory charities are Action against Medical Accidents, National Voices, the Birth Trauma Association, Sands stillbirth and neonatal death charity, and Meningitis Now.
The government has said it wants to reduce spending on clinical negligence claims and has already put out a pre-consultation on fixed costs for cases valued up to £250,000. A formal consultation was expected to be published this month, but could be delayed until the new year.
The letter said the charities support efforts to reduce unnecessary costs, but they believe the current proposals fail to consider unintended consequences of imposing fixed fees.
They said the proposals could make it impossible for some victims to find representation, particularly in cases involving older people and child deaths where damages are low but the case is just as complicated to run.
The charities warn the NHS will not learn any lessons if claimants cannot show there is fault, and that a fixed-costs regime could encourage a ‘deny and defend’ culture from defendants.
‘These effects would run counter to the earlier support that the government has given to the principles of candour and transparency,’ added the letter.
Meanwhile, the courts have again showed they are willing to vastly reduce claimant costs if they believe the sums asked for are not justified.
In Rallison v North West London Hospitals, Mr Justice Garnham sliced more than £250,000 from interim costs claimed by national firm Stewarts Law.
The medical negligence case had settled for £450,000, with the hospital agreeing to pay ‘reasonable’ costs. Stewarts claimed £574,000 while the defendant, represented by Capsticks, volunteered £250,000.
Garnham said the argument of real substance was that the total costs, coming to around £1.1m, were not proportionate to the complexity of the case.
‘This was a fairly typical clinical negligence case with significant, but not unusual, causation difficulties,’ said the judge.
‘The amount originally claimed, £3.9m, and the amount pleaded, £3m seems at least at first blush to have been substantially greater than the genuine value of the claim.’
He added that even allowing for after-the-event insurance and the uplift on fees, £1.1m in costs was a ‘very large amount’ for a claim that ultimately settled for £450,000. He ordered the defendant to pay £306,763 on account of costs.