My response to Government plans on limiting solicitors fees | Fieldfisher
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My response to Government plans on limiting solicitors fees

Mark Bowman

I am worried by the government's plans to limit solicitors fees in medical negligence cases, where the claims are below £100,000, as they would significantly impact on our ability to act for victims of medical negligence.

Recent reforms include:

  • The reduction in legal aid

  • The increase of the fee to issue court proceedings and

  • The inability to recover success fees from the losing party

These reforms have already reduced, the ability of injured parties to seek access to justice and all at a time when the NHS is supposed to admitting their mistakes candidly and as soon as possible.

My main concern with these proposals is that a huge number of medical negligence claims are worth, or settle, for under £100,000. These are not just cases where there has been minimal impact on the injured party. The most obvious of these cases are those involving stillborn babies or babies that die in the neonatal period.

Such cases will, due to the way that compensation is awarded in England, nearly always settle for under £100,000, as the bereaved parents will only be entitled to a small bereavement award of just over £10,000, the cost of the funeral expenses, and potentially a relatively modest amount of compensation if they have themselves suffered a recognised psychiatric illness as a result of the circumstances of the  death, and as long as they meet certain other qualifying criteria.

These cases, despite having limited financial value, are obviously always of the utmost importance to our clients, who are seeking answers following the death of their baby. These cases require a huge amount of work to investigate them fully. They will often involve obtaining independent midwifery expert evidence to comment on the standard of care that the mother received prior to her baby's birth, as well as an opinion from an independent obstetric expert, to comment on whether or not with appropriate care the timing of the birth may have been different. It will then be necessary to involve an expert paediatrician to comment on the care that the baby received following birth, whether such care was substandard and whether with appropriate care the outcome might have been different, as well as a neuroradiology expert to comment on the MRI and CT imaging that was performed, so as to explain the mechanism of the baby's death, so a view can be taken as to whether with appropriate treatment such a mechanism would have been avoided.

In other words, despite having a low value, these cases are extremely complex and require significant time and effort on the part of the legal team to investigate them fully. Capping legal fees in such cases would undoubtedly preclude access to justice and prohibit families from being able to bring legal action. It is absolutely wrong to presume that low value equates with low importance. Other cases involving for example the death of children or the elderly, suicide cases, or cases involving significant surgical errors, will often be worth under £100,000, but still be of the utmost importance to the client.

It is a major bug bear of mine that people refer to claims that are worth under £100,000 as "low value" and that somehow they are less important than a case that settles for a more significant figure. In English law, the level of compensation does to indicate the importance of the claim nor the gravity of the error. If costs were to be capped in such cases, claims would not be able to be brought and the NHS would be less likely or motivated to learn from its mistakes.

Following what are commonly known as the Jackson reforms in April 2013, solicitors are only able to recover costs that are proportionate to the issues at hand. Solicitors trying to recover costs of £100,000 in a claim that settles for only £10,000 will have to convince the Court that such costs are proportionate, and save for exceptional circumstances will not be able to do so, meaning the NHS is only paying out a proportionate amount to the solicitors at the conclusion of the claim. There is no need for a system of cost capping to come into effect. I stress that it is of course only right that those solicitors that do not provide value for money are not able to recover extortionate fees, but such firms are few and far between, and should not be used to tarnish the rest of the profession.

Finally, there is already a suitable mechanism in place for assessing solicitors' fees at the conclusion of a claim. Just as the medical negligence case itself can settle or otherwise go to trial if the parties are unable to agree a settlement figure, the same system applies to solicitors' fees. If the NHS feel that the bill it has received at the end of the claim is excessive and should not be paid, and if that firm of solicitors refuses to accept what the NHS deems to be a reasonable figure, then the Court will ultimately determine what fees the solicitors should recover. If the solicitor recovers less than the amount offered by the NHS, then they are penalised for failing to accept a reasonable offer, and the NHS will only pay out an appropriate figure. Sadly, just as the NHS usually fail to make early sensible offers of compensation they also fail to make early sensible offers to solicitors for their fees with the result that the NHS has to pay interest on such fees instead of being able to use such money to improve the level of service that the public has the right to expect.

In conclusion, rather than seeking to attack Claimant solicitors who are trying to bring justice to the bereaved and injured the NHS should look internally at how significant cost savings could be made whilst at the same time improving the level of service its users receive.