They're late, they're late... for a very important date!
Whilst lawyers across England and Wales have been preparing for the implementation of fixed fees on Clinical Negligence cases, the Department of Health have been facing defeat as the 1 October deadline draws closer.
Implementing fixed fees for Clinical Negligence claims has been an on-going issue following publications of the potential reforms last year. Clinical Negligence lawyers have expressed their fear for the reforms and the negative effect they will have on gaining justice for Claimants. Practitioners have stressed that they are at a constant battle with the NHS to obtain sufficient damages reflecting the severity of the injuries involved and will not be able to achieve the best results for Claimants if their hands are financially tied.
Despite the on-going struggle between Clinical Negligence practitioners and the Department of Health, Health Minister Ben Gummer made clear earlier this year that on 1October 2016 fixed recoverable costs for Clinical Negligence claims would be introduced.
However, these plans changed yesterday and the Association of Personal Injury Lawyers were delighted by the news from Ben Gummer himself, that the deadline could no longer be reached.
The association explained that, ‘the Department of Health has acknowledged that the delay in publication of its consultation on this matter means an October implementation is not achievable. This will be a considerable relief to our members who will need time to prepare their businesses, and provide clarity and certainty for clients about changes to how cases are to be costed and conducted’.
There appeared to be a glimmer of hope for the Association of Personal Injury Lawyers yesterday, however, Ben Gummer has explained that the reforms would still be implemented “as soon as possible following the consultation, in line with Civil Procedure Rules” and therefore, the waiting game continues.
As well as the due date for the implementation of the reforms remaining a mystery, it is also uncertain just how much the fixed fees will be limited to with claims stating that £100,000 will be the limit and other claims that there will be fixes of up to £250,000.
Lord Dyson, the master of the rolls, recently attended an event at the Leeds Law Society and also expressed his worries about the fixed fees and potentially fixing the limit to £250,000.
‘I think [the department] is suggesting and consulting on a proposal to extend [fixed fees] to claims up to £250,000. But it just seemed to me wrong in principle that clinical negligence litigation should be treated as a special case…
…Defendants in all sorts of other litigation are just as concerned and exercised by the cost of litigation, and have just as much a keen interest in knowing what their liability for costs is likely to be capped at by a fixed-costs regime as is the Department of Health.’
As it stands, it is certain that the reforms will eventually be applied and the many attempts to prevent fixed fees have and will fail. However, the Association of Personal Injury Lawyers have made it clear that they have not yet faced defeat and will ‘continue on-going talks’ with the Department of Health ‘about how the NHS can save money without compromising on access to justice for injured patients.’
By Rosie Williams - Trainee Solicitor