Lord Justice Jackson’s review of civil litigation, including a recommendation for fixed recoverable costs in clinical negligence cases up to £25,000, has now been published and can be accessed here.
However the charity Action against Medical Accidents (AvMA) have called the civil litigation review disappointing and are concerned about the effects on patient safety as well as access to justice.
AvMA’s reaction is as follows:
AvMA is disappointed that Lord Justice Jackson’s report fails to truly recognise the impact that imposing fixed recoverable costs on clinical negligence cases will have.
Although he recommends limiting the fixed costs regime to cases with damages of £25,000 or less, this represents the majority of clinical negligence claims. Included within this are very serious and complex claims including stillbirths and child deaths; negligent neglect of older people and claims for people with mental health and learning disability problems.
Clinical negligence claims are far more complex than personal injury claims and imposing fixed costs – no matter how long and inappropriately the claim has been defended – means that many of the claims will not be feasible. Even if a claimant did find a solicitor to represent them and won, they could end up losing most of their damages to meet costs which traditionally would have been met by the losing side.
Peter Walsh, Chief Executive of AvMA said:
“We are disappointed that Lord Justice Jackson has not accepted the evidence he was given and has not fully appreciated the unique challenge of clinical negligence claims. If fixed costs do go ahead it is imperative at the very least that there are exceptions for all fatal cases, cases including children and adults who lack capacity.
“We welcome the fact that if fixed costs for clinical negligence do go ahead, this should be via a ‘standalone’ scheme developed in collaboration between stakeholders. That is better than the Department of Health simply imposing its own rules.”
AvMA is concerned about the effect of the proposals on patient safety as well as access to justice.
Mr Walsh explained:
“Often it is only through people being able to challenge NHS denials through legal action that the NHS is brought to the realisation that it made mistakes. If people are not able to do that, it will mean opportunities for learning will be lost. Your hospital and mine will be less safe as a result.”
