Retrospective changes to clinical negligence legal costs?

As lawyers we are all familiar with the system of court rules and regulations which govern our particular areas of practice. We are also sadly deeply aware of the fact that sometimes there are changes in the rules with little or no notice. Sometimes rules appear only a few days before a whole new system is to be implemented, causing chaos.

Often these rules are preceded by consultations which would appear (from my experience) rarely to be determined in favour of claimants. Take for example the current consultation on fixed fees in clinical negligence cases.

Superficially this is a no-brainer; keep the cost of those greedy lawyers to a minimum and save the NHS. I wrote recently about how flawed that view is and how it is likely to result in reduced access to justice for those with more modest claims.

Leaving that aside however, the initial “pre-consultation” period has been so short as to be ridiculous. We are promised something longer later but we are also told implementation date is October 2016 regardless.

For the uninitiated, a year long period to adapt to some unknown changes might seem lengthy but the suggestion is that the implementation may be retrospective. In other words claims that are ongoing and which fit the, as yet undecided, critieria (always financial)  could fall in the  new system of rules. This means those clients who are already established now, have considered the funding arrangements and have taken the step of bringing a claim, may find that the costs position is no longer as they were advised when they began their case.

Likewise solicitors who have taken on cases on the basis on the current costs regulations and are running cases properly may find some of the legitimate costs of investigation are potentially disallowed at the end of the case for no other reason that policy changed during the lifetime of the claim.

Would it be acceptable in any other work for someone to take on a job not knowing whether the payment terms will be the same at the end as they were at the beginning? How is it fair that a client may find the system altered during the course of a claim which may affect the outcome for them?

The NHSLA and the medical defence organisations are pursuing a very political agenda which will ultimately reduce the number of experienced solicitors available to a large proportion of potential claimants.

Trying to change the system to reduce costs is perhaps a legitimate aim. Coming on the back of changes which have made innocent claimants responsible for  some costs, removal of legal aid for all but a few cases of clinical negligence and eye-watering increases in court fees, the process looks like a further attempt to reduce access to justice.

It is difficult to have faith in a consultation process in which the agenda is already set and  occurs in the context of  attacks on claimants.  In the political process and media campaign everyone seems to have forgotten that the claimants are the injured ones, the innocent ones. These are the ordinary people whose trust was betrayed by those upon whom they should have been able to rely.

Political agendas have no place in genuine consultations. They lead to poor choices and often results which are opposite to the desired effect.

It remains to be seen whether this will be a fair process in which the genune voices and experience of patients’ lawyers will be considered carefully. If recent history is any guide, then claimants will be the ones to suffer yet again.

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