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Review of the Latest Proposals for Fixed Costs in Clinical Negligence - Geoffrey Simpson-Scott, Simpson Millar LLP

17/08/17. At p117 of his Supplemental Report on Fixed Recoverable Costs (31st July 2017), Sir Rupert Jackson recommends that fixed recoverable costs cannot simply be imposed in clinical negligence cases in the absence of also changing the procedural rules. I made this point in “A Practical Approach to Clinical Negligence Post-Jackson” (Law Brief Publishing (2016) . It recognises that the average clinical negligence case is inherently more complex than the average civil litigation case of comparable value.

Although the Report recommends that clinical negligence cases are not yet suitable for inclusion within the fixed recoverable costs framework, Sir Rupert does recommend that the concurrent Ministry of Justice consultation into cases under £25,000 be adapted to make it more suitable for lower-value clinical negligence cases and that certain other clinical negligence cases might later be included within the suggested framework.

Although this appears to largely accept the points made by Claimants’ lawyers, the data provided to Sir Rupert makes it clear that the majority of cases fall below £25,000 and so he says that the requisite costs savings can still be made. He expresses the view in the Executive Summary, para. 11 that Claimants and Defendants ought to be able to come together to make this work. However, the Report does not discuss how this success might be achieved.

The Goal

In Chapter 1, para. 1.2, Sir Rupert expresses the view that the holy grail of reform is to arrive at a system where the “actual costs of each party are a modest fraction of the sum in issue, and the winner recovers those modest costs from the loser.” This bears a certain similarity to opening costs offers made by Defendants’ costs draftsmen. At para.. 1.9, he says that “[c]ontrolling the costs of litigation and providing clarity at each party’s financial commitment are vital elements in achieving access to justice.”

Clinical Negligence

Chapter 8 (which deals specifically with clinical negligence cases), sets out both sides’ arguments. Sir Rupert takes the view that the 36% of cases that are worth more than £25,000 can continue to be safely costs managed by the existing rules on proportionality and budgeting.

Paragraphs 1 to 4 of Chapter 8 cover the data sets submitted for the review and the competing arguments for and against introducing fixed recoverable costs. These are consistent with what we have seen discussed at length already. At paragraph 5, Sir Rupert sets out his proposed way forward:

    • Para. 5.1 confirms that fixed recoverable costs must be linked to procedural reform for it to succeed. However, no further comment is made about how his might be achieved.

    • Para. 5.2 states that acceptance of the proposals for noise-induced hearing loss claims would provide a proof of concept for clinical negligence cases.

    • Para. 5.3 expresses the opinion that the lessons learned from the NIHL proposals indicate that a fixed recoverable costs scheme should work for low-value clinical negligence cases. These are defined as those being worth less than £25,000. Prof. Fenn (who has provided fixed recoverable costs data in the existing small track PI scheme and in the Dept. of Health clinical negligence consultation) has now also reviewed data from APIL and SCIL to supplement that provided by NHS Resolution. This data is to be considered by the proposed working group with Sir Rupert offering to adjudicate on unresolved issues.

    • Para 5.4 recommends that the joint working party be created to promote access to justice by concentrating on cases worth less than £25,000. As these make up the bulk of clinical negligence cases, creating a stand-alone scheme will promote access to justice and act as a possible precursor to cases “of somewhat higher value.”

    • Para. 5.5 states that a minority of higher value cases might be suitable for the intermediate fixed recoverable costs track recommended in Chapter 7 of the Report for cases worth up to £100,000. Sir Rupert suggests that these are cases where liability is admitted early (leaving only straight-forward quantum issues to be determined). The vast majority of clinical negligence cases over £25,000 would proceed as they currently do, however, albeit potentially influenced by changes to incurred costs. Chapter 6, para. 5.2 notes that Master Cook’s and the PIBA’s recommendations on past incurred costs deserve further consideration whilst para. 5.3 recommends that fixed recoverable incurred costs be considered only once these reforms have bedded in.

    • Para. 5.6 expresses the view that these recommendations complement the concurrent Dept. of Health’s proposals for cases worth under £25,000. The procedural rule and protocol changes set out in that consultation paper do not constitute the sort of bespoke process he recommends in this Report. To briefly recap the DoH’s consultation paper, it suggests that Claimants’ solicitors ought to request a Duty of Candour investigation, await the response before requesting medical records, have them sorted and paginated before serving them with supportive expert evidence when the Letter of Claim is sent. The Defendant then has 4 months to re-investigate the case knowing that expert evidence costs and the Claimant’s costs are significantly capped under the scheme.

    • Para. 6.1 concludes by recommending that the Civil Justice Council and DoH should set up a joint working party to develop a bespoke process with a fixed recoverable cost matrix for cases worth under £25,000.

Discussion

This recommendation falls a long way short of what the Defendants’ representatives were lobbying for. However, if the figures quoted in the report genuinely represent the mix of clinical negligence case seen in practice, around 64% of clinical negligence cases will face being subject to fixed recoverable costs at a level which remains to be determined. The remaining cases will remain subject to budgeting and proportionality rules and, therefore, subject to robust challenges.

The following 10 points would assist to attain the goals Sir Rupert has set out:

    1. In any single department, the cost of the successful cases need to outweigh the costs of the unsuccessful ones. Chapter 8, para. 1.3 sets out the figures from the DoH’s 2015/16 fixed recoverable costs consultation report. These state that 46.23% of cases fail. These are cases which fail after the NHS has been notified of them and so do not include those cases which are do not proceed before either a Protocol early notification letter or Letter of Claim has been sent. The Report contains no data of the costs of these failed claims; the closest it comes is saying that Claimants’ point out that the costs of the 2013 LASPO reforms cannot yet be quantified. If we take an average acceptance rate of 10-15% on new cases and accept that some cases will be rejected either after receipt of the medical records or preliminary reports, then the remaining 36% of cases over £25,000 value need to comfortably exceed the costs of a far higher proportion of cases than the DoH figures suggest. This needs to be factored into any fixed recoverable costs matrix which is produced.

    1. It follows from this that practitioners on both sides must have a rigorous risk assessment process in place which is repeated at key points in the case. Whilst this will differ between firms and between each side of the litigation, identifying the key pressure points in the case and reassessing the prospects of success at those points goes a long way to avoiding incurring disproportionate or otherwise irrecoverable costs.

    1. The substantive and evidential rules are not being relaxed. Even if adequate procedural rule amendments are made, disclosing expert evidence unilaterally without protecting that party if further evidence comes to light, is inherently unfair. Access to justice and equality of arms ought not relate only to costs.

    1. Admissions made under the Duty of Candour ought to result in early admissions of liability. Too often, they do not with wholly avoidable costs being incurred reinvestigating liability issues. Such conduct ought to result in a case being taken outside of any fixed recoverable costs matrix on these issues. More work is needed on building up the trust between each sides’ lawyers such that they accept that their opponent has the evidence they say they have.

    1. We know from the existing fixed recoverable costs rules in PI that beating your Part 36 Offer trumps fixed costs. In clinical negligence, this ought to promote earlier, reasonable offers being made once both sides have a reasonable amount of information. If the case is genuinely one worth under £25,000, then the valuation exercise will often be relatively straight-forward given the availability of the JC Guidelines and reported cases. Both sides ought to be able to identify the appropriate range of settlement based on the evidence to hand. Where there are genuine prognosis issues, these ought to be identified and a plan put in place to deal with them in order to promote settlement. The cases which fall outside of a simplified process need to be identified and allowed to remain in the multi-track.

    1. Any fixed recoverable costs scheme needs to include sufficient costs leeway to investigate issues further if additional evidence comes to light. It is not always practical to identify all possible interpretations of the evidence at the Letter of Claim stage because the Defendant’s position is not yet known (especially where it has indicated that it does not accept the Duty of Candour or similar findings). If further evidence comes to light, or a relatively minor issue later attains major significance, then reasonable costs ought to be allowed to deal with it so that the trial court is ultimately assisted.

    1. The impugned clinicians’ witness statements ought to be taken and disclosed far earlier than is currently done where the Defendant seeks to rely on the exact wording of the medical records and/or on that clinician’s standard practice. Too often, this evidence is not disclosed until the usual pre-trial direction date. To reciprocate, Claimants ought to be more amenable to disclosing their witness evidence where the central liability issues are fact sensitive. Mutual, simultaneous exchange would be a useful step in the pre-issue negotiation period for suitable cases.

    1. Experts’ fees need to be properly accounted for. The present proposal in the DoH’s scheme is far too low and does not take into account that experts in some fields charge far more than in other areas. Any scheme ought to set acceptable fees for individual or groups of disciplines at the usual market rates. Consideration ought to be given to allowing additional costs for each expert discipline which is reasonably required to address the issues in dispute thereby promoting the early, accurate identification of those issues.

    1. Better discipline from both sides will be required around experts’ joint meetings. Lengthy and/or complex agendas or one side simply trying to insist on its own agenda being used assist no one and should be avoided even at present. Under a fixed recoverable costs system, neither side is likely to recover those costs.

    1. Both sides will need to avoid getting mired in unnecessary barriers to settlement. In the absence of the substantive law of negligence being simplified, differences of opinion on whether part of a case is likely to succeed at trial will almost certainly persist. Unless both sides are prepared to settle a case on a commercial basis (i.e. the time and expense of running the remaining disputed issues to trial), many cases will continue to appear to be uneconomical or disproportionate. Claimants would need to accept that they get less than they want and Defendants need to be prepared to offer compensation on cases they think they will successfully defend.

Conclusion

Sir Rupert Jackson’s Supplementary Report attempts to strike a fair balance between limiting the costs of clinical negligence litigation and maintaining access to justice. In return for fixed recoverable costs not applying to cases over £25,000, it is not unreasonable to accept that they should apply to cases worth less than that even though those cases are not necessarily simple. If these recommendations are accepted and any joint working party is able to properly protect the individual Claimant, then these proposals could maintain access to justice at a reasonable cost. We should not lose sight of the fact that negligence is inadvertent but can often have very significant consequences going beyond the amount of compensation awarded. The individual Claimant does not ask to be injured and the prospect of meeting the legal tests without proper legal advice is beyond most people. Clinicians have an equal right to receive proper legal advice in defending themselves. The key to reducing costs lies in the early, accurate agreement on the central disputed issues so that these can be focussed on and resolved as quickly as is possible without selling either party short.

Geoffrey Simpson-Scott
Simpson Millar LLP

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