Fixed costs scheme for clinical negligence claims “imperils access to justice”

Introducing fixed recoverable costs for clinical negligence claims valued up to £25,000 will imperil access to justice by limiting victims’ ability to achieve the redress they deserve, CILEX has warned.

Responding to the Department of Health and Social Care consultation on the proposed scheme, CILEX argued that many clinical negligence claims are complex and even the simplest could require significant resourcing and evidence gathering. The fee cap “penalises victims” with serious injuries suffered through no fault of their own, because it would not be economic for a lawyer to run their case.

CILEX argued that, while it was right to try and speed up the resolution of claims, this should not come at the expense of an individual’s ability to access redress after potentially life-changing injury. It explained that fixed recoverable costs were “not suitable” for claims of this type and that while the government has suggested limited exclusions, they did not go far enough to allay CILEX members’ fears.

These concerns were echoed by nine charities and patients organisations – including Action against Medical Accidents, the Patients Association, Mencap and Mind – which urged health secretary Sajid Javid to rethink the plans, arguing they were a threat to both access to justice and patient safety.

The Association of Personal Injury Lawyers also opposed the plans, saying that subjecting vulnerable injured patients, who lacked the capacity to bring their own claims, to the new process was “unfair and inconsistent”.

CILEX raised concerns about law firms’ appetite for taking on lower-value claims, stating: “Further risk arises with claims seen as non-profitable within the scope of fixed recoverable costs, which may not therefore be investigated, leading to a disparity for claimants impacting their ability to seek redress and justice as well as for the NHS to learn important care lessons.”

CILEX chair Professor Chris Bones said: “Whilst we recognise progress has been made since the initial consultation on fixed costs almost five years ago, concerns over access to justice and the ability of victims to gain redress still remain.

“Faster resolution for claimants is something we all wish to see but this cannot come at the expense of the ability to make that claim in the first place. As it stands the scheme risks drastically shrinking the pool of lawyers available to take on such work, limiting the ability of victims to seek redress and removing the opportunity for the NHS to learns valuable care lessons as a result.”