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Civil Litigation Section

Avoiding an arbitrary fix

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Member of the Law Society’s civil justice committee Mark Tawn writes about the cost of clinical negligence cases for the Gazette.  

’A National Audit Office (NAO) study has concluded that the cost of clinical negligence claims is too high and recommends the government should: 

  • Identify the balance between access to justice and access to health services, and what is a proportionate response to harm
  • Address all factors it can influence, including the number of claims, legal costs and damages awarded
  • Determine how its ambitions will be met.

’Injury claims generally have been subject to repeated reforms since 1995. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and changes to the Civil Procedure Rules have had an enormous effect on many law firms and their clients. 

‘Claimants almost always have very limited resources available to fight their case. This means they rely heavily on ‘no win, no fee’ agreements, after-the-event legal expenses insurance policies and a considerable amount of goodwill from (and pro bono work by) their solicitors. 

‘The Law Society stated in its response to the Department of Health’s consultation on fixed recoverable costs in May that ‘the NHS should create a system whereby lessons can be learned across the whole service. This would save money, improve patient care, and decrease the need for litigation’. 

‘Asserting that claimant costs are too high and could lead to destabilisation of current hospital services may provide a good soundbite for politicians, but scratch the surface and you will see the problem has not been created by claimant lawyers – or by their innocent clients. 

‘The NAO report records NHS Resolution’s successes in reducing claimant costs, but fails to acknowledge the role claimant solicitors play in weeding out weak claims. Defendant and claimant solicitors are indispensable in a just legal system which, as far as possible, puts innocent victims in the same position as they would have been if they had not suffered harm. Cost-cutting must not lead to curbing the rights of the wronged party.’

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