Page 26 - PIC Magazine Spring Issue 15
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  FIXED COSTS
            Joseph Norton is an Associate Director and Head of Clinical Negligence at Waldrons Solicitors and part of the Executive Committee for the Society of Clinical Injury Lawyers (SCIL). Here he talks about the impending Government changes to apply fixed costs to all clinical negligence cases valued at less than £25,000.
here have been calls for several years for the costs of Claimants bringing clinical negligence claims to be fixed
by law. A ‘compensation culture’ is said to be behind spiralling costs of clinical negligence, with Claimant solicitors supposedly doing all they can to inflate the legal bill of
an already creaking National Health Service (NHS). In this article, I question what the true root of the problem is,
and look at what the most sensible
solution would be.
Is the cost of NHS Litigation rising?
If you read the recent press, then you’ll see that it is. However, the number of claims made each year has started to plateau at around 10,000 cases, having been at that figure for about five years now. At the time of LASPO, the NHS had seen a doubling of cases in the space of four years, from 5,426 in 2006, to 8,655 in 2010. This time round, there hasn’t been that same spike in case numbers.
What about the costs? Well, they’ve not changed too much either. After a spike
in 2016, Claimants’ costs have risen from £418m in 2015/16 to £442m in 2018/19,
a rise of just over 5% in three years. Defendants’ costs have increased too, from £120m to £139m over the same period, an increase of 15%. Not a huge area of growth; possibly more of an area in decline bearing in mind inflation. Indeed; last year saw a 5% drop in Claimants’ costs.
         Background
A sea change for Claimant Clinical Negligence solicitors took place in 2013, when the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) meant that legal aid was removed for the vast majority
of clinical negligence claims. Solicitors were told
that they would need to rely on Conditional Fee
Agreements, and to start charging their clients a
percentage of any compensation recovered, moving the recoverability of success fees (and elements of the ATE premiums) from the at-fault Defendant to the entirely innocent Claimant.
The rising cost of NHS litigation was the motivation for moving the burden of these costs.
In January 2017, the Government opened a consultation seeking views on fixing costs in lower value clinical negligence claims. Again, the rising cost of NHS litigation was mentioned as the driving force behind the Government’s efforts. Political changes have led to delays in any final decisions, although a Civil Justice Council working group was set up and reported back to the Government late last year.
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