The government has reiterated its backing for fixed costs in clinical negligence cases but hinted that it may be prepared to be flexible about the upper limit.
Speaking during a Westminster Hall debate yesterday, health minister Ben Gummer (pictured) insisted fixed costs can help overhaul the entire litigation system and, in clinical negligence, ensure improvements in medical practice.
The government’s pre-consultation on the issue finished months ago and a formal consultation is imminent. The Department of Health continues to maintain that any reforms can be implemented by October.
Gummer stressed that faults with the present system lie with both claimants and defendants, and he was candid about the NHS Litigation Authority’s performance in admitting liability early.
‘I intend to change the balance for the NHS Litigation Authority and for claimant lawyers, to ensure that we get to a single version of the truth as early in the process as possible,’ said the minister.
‘Many claimants have been immensely frustrated - as have the clinicians involved - by the length of time that trusts and the LA have had to respond to claims, the length of time it often takes to reach a resolution and the fact that there is often too much defence, delay and prevarication.
‘At the same time, I have full confidence in the NHSLA’s current management, because I have seen a real determination to get to grips with the problems it inherited and change the authority into something far more fit for purpose.’
Gummer said the system is constructed to encourage claimant lawyers to 'stack' costs at the early stage of a claim, although he denied this was a ‘deliberate and malicious’ intention.
The minister said the proposed upper limit of £250,000 was not arbitrary, but chosen based on the original intentions of Lord Justice Jackson’s review of civil litigation costs in 2010.
‘In trying to draw a line somewhere, we felt that that was an appropriate place, given his recommendation to do so. That is, however, subject to consultation. We want to hear the full range of views about where the limit should be placed.’
Conservative MP Sir Edward Garnier QC had tabled yesterday's debate to urge the government to think carefully before rushing into any decision over fixed costs.
He stressed that claimant law firms already reject 90% of clinical negligence inquiries and that a £250,000 fixed fee regime will dissuade them from helping more claimants, making many meritorious cases unviable.
He pointed out the NHSLA’s operating costs have fallen in recent years, while the authority’s figures suggesting an increasing average cost per case were ‘misleading’ and based on inadequate analysis.
Garnier attacked the NHSLA for not settling claims early enough and increasing claimants’ costs as a result.
‘Not all medical negligence claims are straightforward, but proving what went wrong is not made easier for a claimant’s lawyer when the NHS holds all the information and is reluctant to disclose it,’ he said.
‘On far too many occasions, cases that could have been settled more quickly, cheaply and satisfactorily are not, because the NHSLA withholds information, does not respond in good time to requests for information, or simply fails to apply its collective mind to the best way of dealing with the complaint.