Judges warn fixed costs will drive expert witnesses away

Leading judges and academics have warned that current proposals for fixed costs in clinical negligence case may impede negligence victims’ access to justice.

The Civil Justice Council (CJC), chaired by master of the rolls Sir Terence Etherton, said caution should be applied, not to rely solely on the value of potential damages awards when considering costs.

But the group stressed it supports the general principle of fixed recoverable fees as a means of bringing down the costs of litigation.

The Department of Health has proposed limiting costs for claims worth up to £25,000. A consultation closed earlier this month to gauge opinion.

The CJC said the proposal’s narrow view of what is proportionate ‘ignores the complexity and evidential requirements of this type of action’, particularly with regard to seeking expert advice.

The group said a claimant will almost inevitably need advice in a potential medical negligence claim to evaluate if there has been a breach of duty. Currently expert fees are capped at £1,200, but judges report that in many cases an initial report will cost £1,500 or more.

‘We are opposed to the imposition of a flat cap for all expert witnesses,’ said the CJC. ‘The instruction and payment of experts will be a problematic issue in applying a fixed costs regime. There is a substantial risk that many current experts would refuse to do lower value work.’

The response says the idea of a single joint expert is ‘highly undesirable’ as claimants would not be able to establish if they have a case.

The council agrees there should be an early exchange of witness evidence, but again makes the point that in most cases the parties will necessarily require expert evidence before a view can be taken and the case settled.