Clinical negligence claims of up to £250,000 could be subject to fixed fees under plans being considered by the government, the Gazette can reveal.
A Department of Health document attached to the civil procedure rules committee meeting papers, seen by the Gazette, revealed ministers are considering whether to consult on the higher limit.
Previously it has been assumed that fixed recoverable costs would be applied to cases up to £100,000 damages, as the government seeks to reduce spending on clinical negligence claims.
Meanwhile, it has also emerged the government envisages that fixed fees will be introduced in October 2016, subject to a consultation opening later this year.
The DoH document suggests that a further £25m would be saved by increasing the limit for fixed fees to £250,000. The department already estimates savings of £80m from the £100,000 limit. It notes that there appears some support amongst senior judiciary for the raised limit.
The document states that in the experience of the NHS Litigation Authority, significant costs are often incurred by claimant lawyers in the pre-litigation and pre-notification period which are not subject to costs budgeting requirements.
It added: ‘There is also evidence of claimant solicitors attempting to claim costs well in excess of the current guideline hourly rates, and considerably higher than the NHSLA pays its defence solicitors.
‘This results in a disproportionate costs claim compared with the damages payable.’
According to the DoH, claimant legal costs for cases closed in 2013/14 amounted to 273% of damages awarded in claims between £1,000 and £10,000; 153% for claims between £10,000 and £25,000; 107% for claims between £25,000 and £50,000; 74% for claims between £50,000 and £100,000 and 54% for claims between £100,000 and £250,000.
It is proposed that the new fixed recoverable costs would apply to all cases in which the letter of claim is sent on or after 1 October, 2016. The Gazette understands that the DoH has this week confirmed consultation will start in November and is likely to be concluded in December.
Claimant practitioner groups will be disappointed that the consultation period is not longer, with some having expected it to be up to 12 weeks.
The campaigning to put the claimants’ message across has begun behind the scenes. The Association of Personal Injury Lawyers has already established a working group of members, which was due to meet this week to discuss this week’s announcement.
The Law Society said it is actively engaging with clinical negligence experts to seek their views on the initial proposals put forward by the DoH. Discussions will include the impact of the proposals on those who have been harmed by the NHS to get access to advice and the possible increase in the numbers of litigants in person.
Law Society president Jonathan Smithers said: 'It is important to keep in mind that clinical negligence claims are brought by people who have been injured by no fault of their own by negligent NHS care.
'Although compensation can never fully make up for the injuries they have suffered, it can help with, for example, the cost of vital ongoing care. Fixing recoverable costs in clinical negligence cases may limit harmed patients' ability to claim compensation for these life-changing injuries.'