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Fixing costs in medical negligence cases must not deny patient justice

15 February 2018

Clinical negligence victims will be the main casualties in government plans to save the NHS money if adequate time is not taken to get the process of fixing costs right, the Law Society has warned.

Commenting on the government’s long-awaited response to its consultation on fixing recoverable costs for low value clinical negligence cases, Law Society president Joe Egan said: "While the Law Society does not oppose fixed recoverable costs in principle, the real savings for the NHS will come from learning from its mistakes and increasing patient safety.

"We fully appreciate the challenges faced by the NHS and its staff, but it must be remembered that clinical negligence claims are brought by people who have been injured through no fault of their own.

“Cases which are not necessarily the highest in value can still be complex and challenging. Fixing costs could end up limiting the time specialist solicitors can spend understanding the details of an incident in care. Patients must not be denied the legal help they need to get the full compensation they are entitled to in law.

“We welcome the formation of a Civil Justice Council working group to look at these proposals more closely. However, ministers have set a worryingly short timeframe for this group to determine how fixed recoverable costs will work in practice. It is crucial that adequate time is taken to get this process right, so that access to justice is not harmed in any way.”

If a fixed recoverable costs scheme is introduced for low value cases, there are still many details to iron out, for example the exemptions to the scheme and how the use of experts will be incorporated. These details still need to be carefully considered to avoid impacts on access to justice.

Notes to editors

The Civil Justice Council working group is scheduled to make recommendations by Autumn 2018.

About the Law Society

The Law Society of England and Wales is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

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