Clinical negligence: Lack of clarity in rules, says claim
The Association of Personal Injury Lawyers (APIL) has issued judicial review (JR) proceedings challenging aspects of the new rules to extend fixed recoverable costs.
The new rules take effect on 1 October, although a Ministry of Justice (MoJ) consultation issued last month put forward some immediate amendments to them to come into force next April. The consultation closes on 8 September.
APIL said it was targeting aspects of the reforms that represented “significant impediments to access to justice for injured people”.
However, given that the consultation related in part to APIL’s claim, APIL has requested, and the MoJ has agreed, that the JR will be stayed until three weeks after the government responds to the consultation.
APIL can then apply to amend the current four grounds for issuing proceedings.
The first concerns clinical negligence claims, including the alleged failure to consult properly on the new rules and a lack of clarity about when fixed costs might be applied.
“The rules suggest that clinical negligence cases valued between £25,000 and £100,000 should be moved to the new intermediate track if ‘both breach of duty and causation have been admitted.’ But it is not specified at what stage of the case those admissions must be made.
“If they are not made until late in the proceedings, a solicitor will have had to undertake a significant amount of work on the case, only to then find that fixed costs are applied which do not cover the costs of the work undertaken.
“This creates a very real risk that solicitors may not take on clinical negligence cases of this value.”
The consultation proposed tightening the rules “to make explicit that the early admission of liability must be made in the pre-action protocol letter of response”.
It added that, although this would not take effect until April 2024, “it is unlikely that any new clinical negligence claims, where the cause of action accrues on or after 1 October, will be subject to early admission and allocation to track in advance of 1 April 2024”.
The second head of claim in the JR are the provisions relating to vulnerable people, which APIL said “will mean that solicitors will have to cover part of the additional costs naturally incurred when representing vulnerable people, despite the fact that these costs are now recoverable following the Court of Appeal’s decision in Santiago v MIB last month”.
APIL said it was also concerned that a judge would only make a decision about a person’s vulnerability later in the case, after the additional costs have been incurred.
“APIL fears that the government has underestimated the impact of the new rules on vulnerable people and that the provisions will interfere with their access to the courts,” it said.
The third head relates to the alleged unlawful exclusion from the new regime of fixed recoverable costs for representation at inquests and for restoring companies to the Companies Register.
“While the government appears to have conceded that these rules need to change [in the consultation], they have not been changed or suspended from the regulations to be introduced on 1 October.”
Finally, the association has challenged “an apparent reversal of Court of Appeal case law, without consultation, which allows parties to contract out of fixed costs when there is a dispute in settlement agreements, in favour of agreeing that costs will be subject to detailed assessment”.
It said this would be “a radical infringement of freedom of contract”.
APIL’s statement concluded: “APIL will continue to attempt to engage with the Ministry of Justice and try to help address the serious concerns and consequences of what will happen when the new rules come into force on 1 October.”
The MoJ said it would not comment on ongoing litigation.
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