On fixed costs, the defendant voice is again the only one heard

You wouldn’t be blamed for forgetting all about the idea of fixed recoverable costs in clinical negligence cases, given the idea was included in Sir Rupert Jackson recommendations back in 2017. To put that into context, Boris Johnson was then Theresa May’s foreign secretary; Watford Football Club have gone through eight full-time managers since.

It took a while, but this was always a fait accompli, no matter how strong an argument was put forward by claimant representatives – yet the figures provided this week, and the justification for fixing costs, are cause for surprise and possibly alarm.

Let’s be clear about this from the start: fixed recoverable costs for cases up to £25,000 will make only a small dent in the legal costs paid from the public purse following clinical negligence claims. According to NHS Resolution, claimants’ legal costs were £448.1m in 20/21 (down, it should be noted, by 10% year-on-year). The best estimate is that this proposed scheme will save around £45m a year. If you really want to save money then the damages payments are the real issue: almost £1.4bn was paid out to victims last year, and this figure is likely to rise in the coming years after an increase in claims.

The government, despite pressure from powerful voices such as Jeremy Hunt, does not want to touch claimants’ compensation. Except this FRC scheme means they might not even get as far as securing compensation at all.

The consultation on fixed costs sets out that figures were suggested by both claimant and defendant representatives in the Civil Justice Council working group created to develop this idea. The Department of Health, perhaps unsurprisingly considering it is writing the cheques, opted for the costs suggested by the defendant groups. No compromise, no meeting down the middle – simply taking the suggestion of one group of interests (which happen to align with the government’s) and opting for that.

Claimant groups may well have had their own vested interests but they also have the interests of their clients. Health minister Maria Caulfield insisted in her foreword to the consultation that the government had ‘taken care to ensure our proposals do not impede people’s access to justice’.

Except the government hasn’t done that. By favouring the defendant group’s figures, it has proposed costs that claimant lawyers have said will be unsustainable for running these claims. More people will be told by their lawyer that the costs on offer are not enough to take on their case, and it is difficult to see how that possibly marries with Caulfield’s assurances about not impeding access to justice. Fixed costs are a worthwhile pursuit if they can save money for the NHS - and claimant groups have been willing to engage - but when decisions are so obviously weighted in favour of the defendant side, there are serious questions over how fair this scheme will be.