Page 7 - PIC Magazine Autumn Issue 16

Explicit acknowledgement that coronavirus in and of itself should not be used as an excuse to simply delay cases – the adage “delay is the enemy of costs”, including Claimant lawyer cash flow, still holds true and perhaps even more so in the current circumstances.
Explicit encouragement to make interim payments of damages and costs, to be responded to if possible within 21 days to speed up mutual benefit for both client and lawyer alike.
It should be noted that the Protocol is only for the benefit of the signatories to it, i.e. NHSR, members of AvMA and members of SCIL.
The Protocol has been widely welcomed, including by the Ministry of Justice because it showcases what we can really do, at a practical level, when we all get together and collaborate as much as possible.
NHSR
In addition to the above Protocol, SCIL has also secured ongoing high-level regular meetings with NHSR so we can talk through and resolve other issues of practical concern. This direct line of communication with the upper echelons of NHSR can only benefit SCIL’s member firms.
www.pic.legal Autumn 2020
Legal Aid Agency (LAA)
For those of us still striving to offer the option of Legal Aid to our clients, the bureaucratic nightmare of working with the LAA is very familiar.
As with the NHSR, I have therefore secured a direct line of communication at Director level with the LAA and will
be holding regular meetings
to try and solve the practical difficulties Claimant lawyers have in working with the LAA.
Topics on the table at the moment are cash flow issues of recoupment, and a willingness to explore hourly rates and capped expert fees. Whilst the latter are both issues for the Ministry of Justice, the LAA has agreed to discuss it and to facilitate discussions about it.
Again, if we can resolve some of these fundamental, practical issues, that will be to the benefit of SCIL members.
FRC
The issue of a possible fixed costs regime for clinical negligence claims has not gone away. It is a matter of public record that SCIL is the only organisation which completely objects to fixed costs, on the basis that it does not solve the problem it sets out to address. That is because costs are not the problem in the system currently in respect of claims worth up to £25,000. The attitude and approach of NHSR to claims of “defend, deny, delay”, and a lack of patient safety learning are much more fundamental.
Most specialist practitioners agree however that the system for relatively low value claims, can be improved without
losing anything in respect of the complexity and importance of those claims, including to patient safety learning itself.
To that end, SCIL has always proposed that the system should be fixed first, piloted and then the issues reviewed in detail before the significant and probably destructive step of fixing costs. SCIL has produced its own streamlined scheme for cases worth less than £25,000, without a fixed cost matrix attached to it, and we continue to lobby the Government to consider that instead of the Civil Justice Council report which solved none of the issues, and in particular did not engage with the patient safety agenda in any meaningful way at all.
SCIL is quite clear with the Government that if fixed costs are introduced, the risk is
that Claimant specialists will withdraw from the market
and therefore NHSR will be
left dealing with thousands of litigants in person which will only increase the Government’s own costs in that regard.
It is noteworthy that the fixed costs scheme for clinical negligence should have been in place in October 2017. That it is not, is down to SCIL’s hard work lobbying and continuing to make our points to Government and other Parliamentarians with
a considerable amount of success. That can only be for the good of patients and their lawyers who can therefore continue to represent them, and provide the patient safety learning which the NHS so badly needs in any event.
PARTNERS IN COSTS
It is noteworthy that the fixed costs scheme for clinical negligence should have been
in place in October 2017. That
it is not, is down to SCIL’s hard work lobbying and continuing to make our points to Government and other Parliamentarians with a considerable amount of success.
Summary
So, a very interesting, busy and productive first six months as Chairman of SCIL. But some really practical outcomes, for everyone to be proud of. Certainly the benefits of the partnership working with AvMA and NHSR which have produced the COVID-19 CN Claims Protocol, the influential communication SCIL can bring to bear with both NHSR and the LAA to produce real and practical benefits for Claimant firms and the ongoing work in respect of fixed costs continue to make it extremely worthwhile to be, and to continue to be, a member of SCIL.
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