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‘Deadline slips’ for clinical negligence fixed fees

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Personal injury lawyers have welcomed claims that the government has conceded that it cannot meet its timetable for introducing fixed fees for clinical negligence cases.

Earlier this year, health minister Ben Gummer (pictured) said it was the Department of Health’s intention to introduce fixed recoverable costs for clin neg claims from 1 October. The government has been expected to consult on the plan since last autumn.

However, the Association of Personal Injury Lawyers said today that it had received ‘welcome confirmation’ from Gummer that the introduction of fixed costs will not be implemented on 1 October.

The association said: ‘The Department of Health has acknowledged that the delay in publication of its consultation on this matter means an October implementation is not achievable. This will be a considerable relief to our members who will need time to prepare their businesses, and provide clarity and certainty for clients about changes to how cases are to be costed and conducted.’

The association added that it will ‘continue ongoing talks’ with the department ‘about how the NHS can save money without compromising on access to justice for injured patients’.

A spokesperson for the Department of Health told the Gazette a consultation will be published ‘later this year’.

Law Society chief executive Catherine Dixon said the Society was ‘supportive’ of APIL’s request to move the 1 October implementation date, especially given the consultation had not been issued yet.

Dixon said: ‘We have always stated that any new regime involving fixed costs for clinical negligence cases should enable practitioners to appropriately plan and implement any changes. We suggested 18 months as a minimum from when the changes are agreed. However, much will depend on the impact of the changes.

‘We continue to work closely with APIL, the Society for Clinical Injury Lawyers, Action against Medical Accidents and the Forum of Insurance Lawyers to ensure that people who have been harmed through no fault of their own by negligent NHS care are able to receive compensation to help them and their families get back on their feet.’

Julie Say, partner and head of clinical negligence at London law firm Hodge Jones & Allen, said: ‘Ever since the October deadline was announced it was obvious that any implementation was going to be too tight.

‘It would be very ill-advised if not downright irresponsible for the government to introduce a fixed-costs regime without adequate consultation, particularly given that the impact of the Jackson reforms is still to be assessed.’

Say said lawyers’ fees were already ‘tightly controlled, capped and limited’ as a consequence of the Jackson reforms.

She added: ‘To seek to introduce further and somewhat draconian changes without waiting to see whether the introduction of costs budgeting will lead to the necessary improvement must, from any angle, be considered to be somewhat misguided and misconceived.’

The Forum of Insurance Lawyers expressed regret at news of the consultation delay.

Mike McKenna, a member of the forum’s clinical negligence sector focus team and partner in Hill Dickinson’s health litigation team, said: ‘It’s a pity that other issues appear to have delayed the [consultation] but it’s obviously a topic still very high on the government’s agenda and we look forward to debating this important issue later this year.’

Lord Dyson, the master of the rolls, last week voiced concern about the prospect of the Department of Health heading the move towards fixed fees.

He told an event at Leeds Law Society that, while he had been ‘convinced for some time’ that the scope of fixed fees should be extended, it was ‘wrong in principle’ that the department ‘should steal a march over all other bodies in leading the way here’.

Dyson said: ‘I think [the department] is suggesting and consulting on a proposal to extend [fixed fees] to claims up to £250,000. But it just seemed to me wrong in principle that clinical negligence litigation should be treated as a special case.

‘Defendants in all sorts of other litigation are just as concerned and exercised by the cost of litigation, and have just as much a keen interest in knowing what their liability for costs is likely to be capped at by a fixed-costs regime as is the Department of Health.’


Fundamental Dishonesty Defence Fails

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Since the defence of fundamental dishonesty was introduced in April 2015, defendants have utilised it as a strategy to persuade claimants to drop or settle their claims.

Section 57 of the Criminal Justice and Courts Act 2015 provides that a court must dismiss a claimant’s whole claim where it is satisfied that the claimant has been fundamentally dishonest, unless by doing so there would be substantial injustice. This would result in the claimant having to pay the defendant’s costs.

This defence recently failed to deter Carol Ravenscroft in her personal injury claim against Swedish furniture giant Ikea. This is one of the first cases where the fundamental dishonesty defence has been rejected by the court.

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Judge takes hard line on late court document

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Lord Justice Jackson has upheld a £211,000 claim won by default after the defendant missed their final chance to submit a court document.

Sitting in the Court of Appeal, Jackson, whose reforms formed the basis of civil case management rules, said Oak Cash and Carry’s solicitors had been too late in applying for relief from sanctions.

Attempting to defend a claim from an electricity supplier in British Gas Trading Ltd v Oak Cash & Carry Ltd, the defendant’s firm, south-east practice Bower and Bailey LLP, had already failed to file a pre-trial checklist within a three-month deadline set by a district judge.

After being given an ‘unless’ order, in effect extending the deadline by two weeks, the defendant failed to serve the checklist until two days after the new limit.

Even then, Jackson said the non-compliance could have been dealt with more leniently, but by the time Bower and Bailey applied for relief from sanctions a month later, the trial date had been lost. Judgment was given in the claimant’s favour by default.

‘The defendant’s lack of promptness in applying for relief is the critical factor,’ said Jackson, following a hearing last month.

‘When that delay is added to all the other factors, it can be seen that the defendant’s default has substantially disrupted the progress of the action.’

Testing the case against the judgments in Mitchell and Denton, Jackson added: ‘It is not possible to classify the defendant’s breach as anything other than significant and serious.’

The Court of Appeal heard that during the three months the defendant’s solicitors were given to comply, the solicitor assigned to the case was called away with personal difficulties.

Despite being a firm of ‘significant size’ with more than 40 solicitors, the court heard the case was handed to a trainee.

Jackson said a central issue was whether the non-compliance with the ‘unless’ order should be taken in isolation or added to the delays previously.

He added: ‘The court usually only makes an “unless” order against a party which is already in breach.

‘The unless order gives that party additional time for compliance with the original obligation and specifies an automatic sanction in default of compliance. It is not possible to look at an unless order in isolation.’

The default judgment against Oak Cash and Carry was allowed to stand.


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