Master of the rolls Lord Dyson has waded into the debate on clinical negligence fees, calling for the scope of fixed costs to be extended to deal with costs which are ‘far too high’.
Dyson told a Leeds Law Society event that the quality of service provided by solicitors delivering civil justice was ‘impressive, but who can afford it?’.
He asked: ‘How many of you would start proceedings, instructing a solicitor or barrister in the usual way in pursuit of a claim?’
Dyson said he recognised that conditional fee agreements promote access to justice but ‘you have to be pretty desperate or very rich to be willing to engage lawyers in the time-honoured way, being charged at an hourly rate, with no cap and simply not knowing what you’re committing to’.
The government last week conceded that it would not meet its 1 October timetable for introducing fixed recoverable costs in clinical negligence cases.
Dyson said he had been convinced ‘for some time’ that the scope of fixed costs in litigation should be extended to include all fast-track cases and all cases in what he referred to as the ‘lower reaches’ of the multi-track.
Acknowledging that the government has, in principle, agreed to extend the scope of fixed costs, Dyson said: ‘It’s going to happen. It’s going to take a long time. It will be subject to consultation. I suspect there may not be too much resistance to the principle of extending fixed costs. I have little doubt, however, that many will have a lot to say about where the cut-off should be in the multi-track, perhaps even more so as to the figures that are to be determined for the fixed costs.’
He predicted that fixed costs would also reduce the need for costs budgeting, saying: ‘I am horrified that costs litigation is now a recognised specialism.’
Dyson also revealed that the lord chancellor had expressed interest in a contingency legal aid fund, ‘not least because he is not keen on CFAs. At a meeting I attended with him only recently he expressed his dislike of the idea of CFAs because he thought it was wrong in principle that lawyers should have a financial stake in the outcome of litigation’.
But, despite the lord chancellor’s interest, Dyson questioned whether a fund would be established.
He warned: ‘The rock on which that idea foundered when it was last considered some years ago was the lack of money to provide the seed core for which this crop could grow. I fear that this may happen again. I hope not, because, in principle, I think it is an excellent idea.’