LEGAL REFORM
legal costs
have vastly exceeded damages awarded. In one particular case of alleged delayed diagnosis of breast cancer, we negotiated a settlement on behalf of our member for the sum of £35,000 but the claimant submitted costs of over £200,000, which was eventually settled for £170,000. In another case involving a poor outcome from mastopexy, we settled for £3,000 but the claimant costs amounted to £118,000, of which solicitors’ costs were in excess of £70,000. Tese are but two of many examples.
“We acknowledge the need for fairness and access, especially in more complex higher- value claims”
Jackson reforms and LASPO MDDUS recognises that other reforms have begun to address some of these issues. In April 2013 the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 took effect in response to proposed reforms in civil litigation costs by Lord Justice Jackson. LASPO abolished the recoverability of “success fees” from defendants where the claimant entered into a conditional fee agreement (CFA) or so-called “no win, no fee” arrangement. Now it is the claimant who must pay the success fee and this cannot exceed 25 per cent of the damages (excluding damages for future care and loss). MDDUS believes that such reforms – although welcome – are
unlikely to achieve the necessary controls on unwarranted cost. Moreover, LASPO has in one important respect made the situation worse by introducing qualified one-way costs shiſting (QOCS). Tis allows a claimant to recover costs from a losing defendant but bars a successful defendant recovering costs from a losing claimant. QOCS means that the NHS and defence organisations like MDDUS cannot reclaim the costs expended on rebutting wholly spurious claims. In addition, the extended transition period for LASPO changes has had the effect of increasing the volume of tendentious and
SPRING 2016
poorly prepared litigation in the short-term, an effect totally at odds with Parliament’s intent in passing the legislation. We can see a similar effect starting to happen in relation to the proposed new changes, so it will be important for Government to implement quickly and cleanly to stop a similar bubble of dubious claims emerging again. MDDUS therefore strongly supports the
introduction of a fixed recoverable cost scheme, especially for lower value claims. We
acknowledge the need for fairness and access, especially in more complex higher-value claims in which costs restrictions might provide a disincentive for solicitors to offer services in clinical negligence and thus restrict access to justice for patients. But excessive outlay in claimants’ costs needs to be curtailed. Access to justice should not be confused with unlimited licence to lawyers.
Wider reform Fixed recoverable costs for lower value claims is just one measure among others. At MDDUS we are doing what we can to curtail escalating legal costs, including more robust case handling, rejecting claims that have no merit and challenging legal costs. We are also committed to promoting greater risk awareness and education among our members to reduce patient harm, and better communication and complaint handling to prevent patients feeling that their only recourse is through the courts. MDDUS also believes there is a case for wider reform in civil
litigation and we are urging Government to explore further legislative means to prevent the continued escalation in legal costs – but this current vital step regarding fixed recoverable costs should not be delayed whilst a more comprehensive package is prepared.
n Chris Kenny is CEO of MDDUS 13
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