Clamp down on legal costs would leave many with no legal remedy

Consultation expected imminently

The long awaited consultation on controversial Department of Health proposals to impose a ‘fixed recoverable costs regime’ on clinical negligence cases is expected before the end of the year.

The proposal would impose absolute limits on what legal costs can be recovered by claimant lawyers who win clinical negligence cases for patients/families. It will be proposed that the amount of legal costs recoverable should never be more than the amount of compensation won for the injured patient/their family – regardless of how unreasonable and drawn out the denials and defence of a claim have been.

AvMA believe that the proposals would create a perverse incentive for NHS trusts and other health providers to deny and defend claims rather than learn from mistakes and settle claims with minimal legal costs.

The cap on legal costs could mean, particularly in cases involving smaller amounts of compensation (including child deaths, stillbirths, and elderly people’s treatment) would not be able to find lawyers able to take on their case, if it is defended.

For more information see AvMA’s briefing on what is known about the proposals so far

AvMA chief executive Peter Walsh said:

“We are all for saving unnecessary legal costs. However the way to do that is for the NHS to investigate incidents better, identify where it has made mistakes, and settle cases without the need even to litigate.

“The proposals as we understand them would both take away many people’s ability to get access to justice and create a deny and defend culture rather than the learning culture which the NHS needs so much.

“We do not condone any excessive or inappropriate claiming of costs by lawyers, but if and when that does happen the courts and the NHS already have the ability to challenge this and clamp down on it.”