Experts, fixed costs and the problems on the horizon

As every solicitor working in personal injury and clinical negligence knows, the introduction of fixed recoverable costs causes difficulties for the claimant.  Whilst the costs recovered for successful claims can be more than the compensation, it rarely represents anything like the investment of the firm involved in trying to bring the case to a successful conclusion.

Approximately 60% of claims against the NHS are for £25,000 or less in terms of valuation.  It is easy to see why in those circumstances the idea of fixed recoverable costs is attractive to the NHS.

Most solicitors dealing with this area have come round to the idea that, whether desirable or not, fixed costs are likely to be imposed.    It does not necessarily, however, mean that victims of clinical negligence will be able to get their compensation or indeed that they will have an appropriate investigation of what has happened to them.  Where costs are fixed, clearly the amount of work and the level of the fee-earner dealing with the matter has to be limited.  It is not economic to have a hugely experienced solicitor dealing with a claim where the costs are fixed at a low level, but not all of the lower value cases are simple.

The value of a case (its “quantum”), does not equate to the level of complexity in clinical negligence.  The death of a baby, for example, may fall well within the £25,000 limit, but could be due to a whole number of different medical issues  creating the need for many different experts at some considerable cost.

The other part of the issue is that in order to keep fees down, expert costs need to  be reduced.  Like all solicitors dealing with complex catastrophic injury cases, I sometimes receive fee notes from experts which make me think twice.  I have received quotes from experts asking to be made more than £400 per hour with no reasonable prospect of being able to recover that from the other side and thus having to make a decision about whether to instruct that expert and who is going to pay for the shortfall.  Experts are expensive and in clinical negligence cases more so.

The suggestions that have been made are that expert fees should be capped at about £1,200 per case.  It sounds a lot but the reality is that for many experts that is somewhere between four and six hours’ work.  A case involving a client with significant complex problems and extensive records or one who needs to be examined and a condition and prognosis report prepared on top of the analysis of the medical records is likely to take considerably more than four to six hours of work.  It is simply not something that can be done within such a time.

In addition is a suggestion of a single joint expert giving evidence for both parties.  This is something that has come into personal injury cases a great deal but it has a different significance there.  If someone has sustained, as a result of negligence, an injury which is straightforward and can be defined and dealt with then the use of a single joint expert may be less controversial.

In a clinical negligence case often the clients, even if they have suffered a specific injury as a result of negligence, have other factors which need to be taken into account.  They may have additional illnesses and problems which impact on the effect of the injury they have suffered.  There may be a difference, therefore, in how a claimant’s solicitor would interpret that with their own expert and a defendant.  The difference may be perhaps, in cases of low value, £5,000 to £10,000 but £5,000 to £10,000 for somebody on a limited income is a huge amount.  It can make a significant difference to the claimant.  That may be an issue which needs to be taken forward.

There is no doubt that for many firms as and when (because most people feel it is when) fixed costs are introduced lower value claims will not be viable. Firms such as those in  Central London or major cities may find that in fixed costs cases there is no way to recover sufficient fees to cover its  costs.  It is then not worthwhile taking those cases forward.  This means that up to 60% of the cases may be denied access to the more experienced solicitors.

The other aspect is that, because the costs are fixed at a low level, there is a possibility that solicitors may settle the cases at an earlier stage, without full investigation, rather than incur costs which they cannot then recover.  Again, that is an issue for the client.

Clinical negligence is a particularly expensive area of law in which to investigate cases.  It relies very heavily on expert evidence which simply is expensive.  Whilst we can perhaps be critical of those experts who are charging fees in excess of what is in essence the market rate, we must also remember that without those experts our cases cannot proceed.  There is no doubt that experts in general need to look at their charging rates to consider whether they are going to be able to do sufficient medicolegal work to be considered experienced.

There is also on the other side, however, an increasing need for defendants, the NHS, the government and the Legal Aid Agency to recognise that we cannot work with experts who cannot be paid properly.  They simply will not do the work and it is not in the interests of anyone to have work that goes undone or is completed in a cursory manner or is dealt with by a consultant who is barely qualified, is not experienced and is taking a rather slapdash approach to matters.

Clinical negligence claims occur because somebody has been injured during the course of healthcare.  It is one of the fundamental breaches of trust.  It is not the same as a commodity and losing funds as a result of a market deal that has gone wrong.  It is very much time that the courts, the government and defendants started putting the victims first and looking at what they need to get proper compensation when a claim is successful.  That does not come cheap and, of course, it is much cheaper not to be negligent in the first place, but the emphasis needs to switch from money to claimants  There are very real people with very real injuries at the centre of these claims and they seem to be forgotten in the rush to save money.