A patient charity has condemned a report into fixed costs for lower-value clinical negligence, saying the proposals are counter-productive, misguided and premature.
Action Against Medical Accidents (AvMA) said last week’s report by a working group of the Civil Justice Council threatened to drive claimant solicitors out of clinical negligence and create an uneven playing field loaded in defendants’ favour.
The report followed an 18-month study into the feasibility of fixed recoverable costs for claims worth less than £25,000. Claimant and defendant representatives on the group came to broad agreement on how a scheme could work in theory, but there was no resolution on what the costs should actually be or how expert fees could be integrated into the system.
Peter Walsh, chief executive of AvMA, described it as a ‘really bad report’ which approached the subject as pursuing ‘fixed costs at all costs’.
In a briefing paper, the charity says that a fixed costs scheme would result in solicitors claiming back more of their costs out of damages awarded: in lower value claims, this would mean claimants losing most of their damages.
The alternative, suggests AvMA, would be that many potential claimants would not be able to get a solicitor to represent them in cases where the damages are relatively low. This would be most keenly felt in cases where there has been a fatality of an older person or a child or stillbirth.
‘Our discussions with specialist solicitors confirm that if the fixed costs regime is brought in, the vast majority of them will not be able to take on cases like these,’ said AvMA.
‘Victims of serious neglect and negligent treatment of older people such as we have seen at Mid Staffordshire and elsewhere, and child death cases such as those seen at Morecambe Bay and elsewhere would simply be unable to have access to justice.’
The charity also pointed out that fixed costs proposals are being made before the effects of the Legal Aid, Sentencing and Punishment of Offenders Act had really kicked in.
The Ministry of Justice will now decide whether to adopt the CJC group’s proposals and, most likely, would then consult on where to set costs levels.