Fixed recoverable costs proposals “illogical and potentially unfair”

Published: 31 Jan 2022

The Government had today (31 January 2022) opened a consultation into fixed recoverable costs in lower value clinical negligence claims in England and Wales. The consultation proposes a new scheme which the Government claims will “enable claimants and defendants to achieve faster resolution of ‘lower value’ clinical negligence claims (claims valued up to and including £25,000) at a lower, more proportionate cost than under the current system”. AvMA is deeply concerned by the proposals, as set out previously here.

AvMA Chief Executive Per Walsh said:

“It is shocking that the Government is still pushing to bring in these illogical and potentially unfair proposals rather than looking at the root causes of high costs and addressing them. They consulted on the main thrust of these proposals in 2017 and the ideas were rejected by a majority of respondents.

“The Government seems to have ignored the fact that the likely effect of these proposals would be that many people whose lives have been devastated by perfectly avoidable, negligent treatment will not be able to challenge denials or get access to justice. In effect, the very people that the NHS has harmed through lapses in patient safety will have to pay again by losing access to justice. If lawyers are unable to claim for time they spend overcoming denials of liability, injured people will not be able to get legal representation.

“The legal costs the Government are talking about only arise when claimant lawyers win their cases, and the legal costs only escalate if there is protracted denials and defence. The best way to save the NHS money is to improve patient safety to prevent these incidents in the first place, and when mistakes do happen investigate them properly and make early, fair and appropriate offers of compensation without costly litigation. These proposals, as well as being unfair and uncaring, would create a perverse incentive for the NHS to simply deny and defend and could actually make treatment less safe, as many mistakes will no longer come to the surface or be learned from.

“It is also disingenuous for the Government to claim that legal costs paid to lawyers if they win their case are unreasonable. They can be and are challenged in court where that is the case. The Government itself is responsible for the no-win no- fee system it is now complaining about. It abolished Legal Aid in clinical negligence cases in spite of the fact it was known to be cost effective. We are all for reducing unnecessary costs in clinical negligence, but the Government have repeatedly refused get around the table with stakeholders and discuss solutions. Instead they seem obsessed with pushing through these flawed proposals.”

AvMA will publish a full response to the proposals in due course.