Injured claimants cannot be expected to meet the costs burden of building their case, lawyers have warned the government.
The Association of Personal Injury Lawyers (APIL) today condemned proposals that several types of disbursements would not be recoverable under government plans to extend fixed costs to clinical negligence claims worth up to £25,000.
The Department of Health aims to implement the extension in April 2024 – although there are severe doubts that timetable will be met – and is consulting on the particular issue of disbursements.
APIL objects to counsel advice fees being excluded (except for cases involving children or vulnerable parties) from the scheme, saying there would be many circumstances where it is reasonable to get a barrister’s opinion on a low-value claim.
The group also believes that professional medical records collation, sorting and pagination fees should be recoverable.
‘It is only fair and just that if the claimant is successful in their claim, they should be able to recover the reasonable costs of doing so and those costs should be shouldered by the wrongdoer,’ said Guy Forster, APIL executive committee member.
‘Injured patients are only in the situation of making claims at all because of negligence. They do not ask to be harmed.’
Forster said the government was moving with ‘alarming speed’ given the detail that had yet to be agreed. To be less than six months from implementation with no decision on disbursements – let alone an indication what happens to cases dropping out the scheme or whether inquest costs are recoverable – was ‘extremely worrying’.
There is particular alarm among claimant lawyers at the different rules being applied to claims involving stillbirth and neonatal deaths (excluded from fixed costs) and other cases where babies have died.
APIL argues in its consultation response that this suggests some lives are worth more than others and that the extension of fixed costs to cases where a baby has died overlooks the extra compassion and case required to deal with bereaved families.
The fixed costs extension, it is pointed out, would have covered claims relating to the maternity scandal in Mid Staffordshire NHS Foundation which resulted in hundreds of avoidable deaths, or the victims of nurse Lucy Letby who died in her neonatal unit.
‘If fatal cases aside from those involving stillbirth and neonatal deaths are included within the scheme, the particular disbursements that relate to fatal cases should be recoverable,’ adds the APIL response. ‘For example, the costs associated with the grant of probate, including the application fee, and the costs of letters of administration which are required to prove the legal right to manage and represent the deceased’s estate must also be recoverable.
‘If this cost is not recoverable, it would be a barrier to access to justice for estate representatives.’
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