The level and unchecked nature of claimant solicitors’ costs has become a significant and increasing concern to defence practitioners over the past years following the Woolf reforms and the diminution of Legal Aid funding to be replaced by a culture of CFA and ATE insurance.
LJJ recommends the concept of success fees and ATE insurance recoverable from the defendant be swept away with capped success fees only being allowed against the instructing claimant and the need for ATE insurance removed by the adoption of one-way costs shifting. His refreshing and welcome recommendations at last place an interest (albeit limited) on the claimant to monitor the costs being incurred by his instructed solicitor. For a general summary of the reforms please refer to our briefing.
In his report LJJ identifies some specific recommendations for clinical negligence claims based on the findings of his detailed consultation process.
He concludes the excessive costs presently being incurred by claimant solicitors pre-action are due to a lack of effective costs control and suggests applying a limiting threshold for these costs of £30,000 pre-proceedings, with a maximum of £15,000 to be incurred before a Letter of Claim is served.
He considers post-issue the court should be empowered to robustly manage costs with an early budget hearing before the specialist High Court Master or District Judge following issue of proceedings and suggests pilot of this commence in the High Court from 1 June 2010.
He suggests trusts should be encouraged to provide disclosure of records in 40 days by enabling a claimant to withhold payment if not provided in this timeframe. LJJ was advised some trusts were slow in submitting Letters of Claim to the NHSLA and suggests Letter of Claim in future be served on both the trust and NHSLA.
Based on his consultations with claimant practices LJJ considers on occasion the defence team fail to get to grips with the issues with due expedition and recommends extending time for the Letter of Response by one month to assist with this but in return obligating the NHSLA to obtain independent expert evidence to inform these responses in all but frivolous claims.
He proposes allowing a subsequent three month moratorium on proceedings where a defendant wishes to settle without admission.
He also encourages regulations be drawn up to implement the NHS Redress Act 2006, considering this an appropriate scheme to promote access to justice at proportionate cost in low value clinical negligence claims.
We support LJJ’s recommendations and encourage all defendant practices and bodies to lobby for the primary legislation and regulations necessary to enact these reforms.