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Many clinical negligence specialist solicitors will admit that if you were to set about designing a claimant-friendly court process, it is unlikely that anyone would recommend the current one.
The potential for a better, more efficient, and more economical way of working does exist but to make effective change it is our view that you need to look at the current system to identify the triggers that give rise to increased costs. The longer a case runs the higher the costs; this correlation appears to be accepted, but there are almost certainly other factors. It is a pity that this has not been explored further.
The Low Damages Fixed Recoverable Cost (LDFRC) process has been designed to facilitate swifter resolution of claims, seeking to shorten the time between notification and resolution, and this is to be applauded. Whether that process can deliver remains to be seen.
Central to whether a FRC process will work or not is the question of whether the levels of fixed costs currently proposed are commercially adequate. That can only be answered by specialist claimant lawyers. AvMA does not conduct litigation, and therefore we are not able to offer any views on whether the levels of FRC offered are economically viable or not.
It stands to reason that the government needs to listen and respond to the specialist clinical negligence claimant lawyer voice on this crucial issue. A failure to do so will result in lawyers experienced in this complex area of law ceasing to do this important work. While that void may be filled by non-specialist lawyers “having a go”, this will likely lead to adverse consequences for the injured claimant.
We do not have to look too far to witness the additional distress that can be caused to injured patients when non-specialists become involved. In recent months, AvMA has been supporting more than forty women who have life-changing injuries from vaginal mesh cases; they already felt let down by the medical profession. When Fortitude Law, who were representing them, went into administration, many of them were left also feeling let down by the legal profession.
Fortitude Law was run by a sole practitioner who was not accredited by any specialist clinical negligence body. It appears that limitation has been missed on numerous occasions; cases have not been progressed, claims may have been under-settled and generally these injured women have not been kept up to date with the merits of their case. This should not be allowed to happen, but by allowing non-specialists to enter the clinical negligence market, we risk seeing more of these types of problems.
It is staggering how blatantly government picks and chooses what they want from the Sir Rupert recommendations. The reforms certainly have a focus on achieving greater certainty around costs; however, his vision was about more than saving costs. It was about preserving the integrity of our world-renowned legal system.
In Sir Rupert’s Review of Civil Litigation Costs: Supplemental Report FRC, published in July 2017, we are reminded of his five strategic objectives (para 2.2).
The objectives are described as:
Few people, including lawyers, would disagree with the principle of cutting out unnecessary work. In our experience, patients/claimants find litigation stressful, difficult and time-consuming. If the process can be shortened by cutting out unnecessary work, that is a good thing. Likewise, facilitating and incentivising early settlement of disputes is good for patients/claimants and no doubt good for the healthcare professionals involved – achieving this is win/win.
As part of strategic objective (ii) Sir Rupert reminded us that in his original report Review of Civil Litigation Costs (published December 2009) he had recommended in “forthright terms that there should be no cutbacks in legal aid” (see para 3.1 of the supplementary report). The government has since cut back legal aid significantly.
In his paper for the Civil Justice Council Conference on 21st March 2014 (para 3.1-3.3) he makes it clear that “One cannot bring down the cost of litigation simply by rewriting the costs/funding rules”. He went on to point out that “measures should be taken to promote the assignment of cases to designated judges with relevant expertise”, a process referred to as docketing. The importance of “judicial continuity” was one of the “few matters upon which the various warring parties agreed during the Review. Finally, the experience of both Australia and the US confirms the benefit of judicial continuity.”
Disappointing then, that we are no closer to docketing than we were in 2009. The importance and relevance of docketing and the contribution this could make to bringing down the costs of litigation appear to have been ignored.
FRC per se does not make litigation cheaper, it shunts the cost of litigation onto the injured claimant, reducing their damages by making them contribute the shortfall in their legal costs out of the compensation awarded for their injury. This is plainly an injustice. The LD FRC process and protocol offers no protection for the claimant and their damages, and this is a significant failing.
Neither does it offer any opportunities to identify patient safety and learning from the process. Under a FRC regime it is entirely possible that the shortfall created by FRC could severely reduce client damages, wipe them out altogether or, in the worst case, leave the injured claimant owing money to their lawyer despite successfully proving their case.
The LD FRC process itself may provide some redemption. A two-track approach could improve the claimant experience. If the Light Track does what it is intended, to which is encourage early admissions, this must be a good thing. If the Standard Track does shorten the time to satisfactory resolution while offering claimants an award of damages appropriate for their injury, then this too will be a good thing. It would be even better if the damages were protected at least to some extent.
As for Neutral Evaluation, the jury is out. With the current backlog in the courts and a shortage of judges, particularly specialist judges, there can be no harm in trying to find alternative ways of resolving claims.
It is our view that for Neutral Evaluation to stand the best chance of success the Evaluators must be impartial, respected within their field, be experienced in clinical negligence work, and have gravitas. It they do not, the process will not have the confidence of the parties or the patient/ claimant and is unlikely to succeed.
The failure to pilot Neutral Evaluation, a process which has rarely been used in clinical negligence litigation is a missed opportunity. AvMA does have concerns about the failure to offer any initial, early monitoring of this process.
Nonetheless, while it remains to be seen, it is just possible that this process will prove to be better than the one we currently have.
Ian Cohen, from the Cohen Consultancy looks at how the extension of Fixed Recoverable Costs will affect the Clinical Negligence sector.
Adam Grant, Costs Lawyer at KE Costs, weighs in on the biggest shake-up of civil litigation costs since 2013.
William Ellerton, Partner at DAS Law, gives his predictions for how the new FRC could play out.
Empowering smaller legal practices: The success of the Optimise scheme
Fixed Recoverable Costs is upon us
The Optimise scheme, launched by DAS and Maxima, has supported over 100 clients over the past two years, transforming the landscape for clinical negligence and personal injury cases.
Lisa O’Dwyer from Action against Medical Accidents looks at how the LDFRC process will affect Clinical Negligence claims.
The ARAG Group and ERGO Versicherung AG, ERGO Group’s property & casualty insurer in Germany, have signed an agreement regarding the acquisition of D.A.S. UK, ERGO’s legal protection insurance business in the United Kingdom.
Matthew Olner, solicitor at Nelsons, talks about how the QOCS changes have affected his law firm.
In this article, Rebecca Squires and Jane Marigold from DAS give their perspective on the QOCS changes.
The full impact of the QOCS changes will be played out in years rather than months. Here, Henry King from 12 King’s Bench addresses what might be done about it from a claimant perspective.
Change has long been brewing in relation to the Qualified One-Way Costs Shifting (QOCS) regime.
Carol Parsons, Head of ATE at DAS, talks about ATE and its numerous strengths ahead of BIBA 2023.
Ahead of BIBA 2023, here's a look at what we have to offer to customers, particularly in uncertain times.
Since the introduction of QOCS and the subsequent change to ATE premiums being payable by the client, solicitors have faced some challenges when the client is a minor.
Carol Parsons, Head of ATE at DAS, explains the difference between After the Event and Before the Event Legal Expenses Insurance.
DAS and Maxima have launched ‘Optimise’, a new clinical negligence/personal injury scheme aimed specifically at smaller legal practices.