The government is ignoring the wasteful behaviour of defendant lawyers by fixating on claimant costs, according to the Association of Personal Injury Lawyers (APIL).
The Department of Health is set to formally consult in November on limiting costs for claims worth up to £250,000 and has asked for opinions on what the consultation should consist of.
APIL said in its response that ministers should be seeking to enforce a ‘professional and efficient approach’ to dealing with incoming claims if they want to reduce costs and protect vulnerable patients.
‘Lawyers who act for injured patients have had to adapt to deal with recent legal reform,’ said Neil Sugarman (pictured), vice-president of APIL. ‘By comparison, the NHS approach to litigation is often ponderous, obstructive and wasteful.’
APIL says fixed fees should apply only in cases where the NHS Litigation Authority admits that the NHS has caused an injury, offering an incentive to deal with claims quickly.
The issue of liability heaps extra costs onto the process, said Sugarman, particularly as the NHS has the facts of the case at its disposal but will not admit liability.
‘The injured person spends years trying to prove there was negligence, running up costs all the time, only for liability finally to be admitted at the 11th hour.’
Meanwhile, one clinical negligence lawyer has invited health minister Ben Gummer to visit her firm to get a full picture of how costs are accrued in pursuing cases.
Gummer has alleged that some lawyers have ‘unscrupulously’ used patient claims to load ‘grossly excessive’ costs on to the NHS and charge far more than the patient receives in compensation.
Nina Ali, partner at London firm Hodge Jones & Allen, said fixed costs will result in vulnerable people and those on low incomes unable to secure proper representation and in many cases not able to bring a claim at all.
She told Gummer: ‘I firmly believe that were you to spend a couple of days or even a few hours on the ground going through some of the cases we deal with… you would gain an understanding of the negligence encountered by patients, the tactics employed by defendants and the direct changes to NHS procedures that can and often do result as a consequence of litigation.’
Ali said the costs budgeting regime introduced by Lord Justice Jackson in 2013 encourages many of the behaviours the government wants and should be given time to bed in.
‘To seek to introduce further and somewhat draconian changes without waiting to see whether the introduction of costs budgeting will lead to the necessary improvement must from any angle be considered to be somewhat misguided and misconceived.’