Written evidence from the Medical Protection
Society (AJ 07)
EXECUTIVE SUMMARY
MPS has long held deep concerns about the way in
which costs have escalated in clinical negligence cases and we
very much welcomed the proposals by Lord Justice Jackson. However
the Green Paper setting out proposals for the implementation of
Lord Justice Jackson's recommendations is limited insofar as it
does not seek to deal with all of the recommendations. We would
be concerned if Lord Justice Jackson's proposals on conditional
fee arrangements are ultimately implemented in isolation; we strongly
feel that his recommendations, taken as a whole package, are a
powerful tool in ensuring that litigation is affordable for society
as a whole.
MPS also has an interest in the Green Paper on the
provision of legal aid insofar as a small number of clinical negligence
claims in England and Wales are conducted on the basis of legal
aid funding. We believe firmly in the principle of affordable
access to justice and are concerned that the Lord Chancellor proposes
the abolition of legal aid funding for all clinical negligence
cases subject to the availability of funds in exceptional cases.
We feel that it is only right that legal aid funding be available
to fund cases for the most vulnerable patients; for example children
who have suffered severe brain or physical injuries.
INTRODUCTION
1. The Medical Protection Society (MPS) is the
leading provider of comprehensive professional indemnity and expert
advice to more than 270,000 doctors, dentists and other health
professionals around the world. We have over 100 years' experience
of the medicolegal environment and operate in 40 countries around
the world. In the United Kingdom we have around 170,000 doctors,
dentists and other healthcare professionals in membership comprising
around 50% of all doctors and 70% of all dentists.
2. As a mutual, not-for-profit organisation we
offer members help, on a discretionary basis, with legal and ethical
problems that arise from their professional practice. This includes
clinical negligence claims, disciplinary and professional regulatory
investigations, inquests, complaints and general ethical and professional
advice.
3. Our submission draws on our own experience
of handling claims on behalf of our members in over 40 countries
worldwide. Our experience is that the costs associated with claims
in England and Wales are among the most expensive in the world.
In this response we limit our comments to the issues arising out
of the Ministry of Justice's Green Papers on costs.
SPECIFIC ISSUES
RAISED BY
THE COMMITTEE
IN THE
TERMS OF
REFERENCE
Do the proposals to implement the Jackson report
recommendations on civil court funding and costs adequately reflect
the contents of that report?
4. MPS recognises that patients who have suffered
avoidable harm as a result of the negligence of a doctor should
be fully compensated and that, generally, they will require legal
assistance to enable them to advance their claim. MPS's concern
is not that the costs are incurred at all but that the costs incurred
are often disproportionate and place an unreasonable burden on
defendants.
5. Most claims are now funded by CFAs where the
claimant's lawyers are remunerated on a "no win no fee".
In order to take on cases for "free" and manage the
risk of losing the case, lawyers can claim a success fee calculated
as a percentage of their usual base costs. As they can claim up
to 100% of their base costs this means that claimant lawyers can
recover twice their normal costs. Claimants are encouraged to
take out an "after the event" insurance policy ("ATE")
to cover them for the prospect that they lose and must pay the
defendant's costs. The cost of this policy is also payable by
the unsuccessful defendant. Under these arrangements the claimant
will never pay any costs and does not have any financial stake
in the way the case is run so that there is little control on
the way the claim is litigated. MPS often sees claimant costs
far in excess of the damages paid to the claimant. For this reason
we very much welcome the proposals by Lord Justice Jackson, in
particular his recommendation that ATE cover and success fees
associated with conditional fee arrangements should no longer
be recoverable from the losing defendant.
6. The Green Paper setting out proposals for
the implementation of Lord Justice Jackson's recommendations is
limited insofar as it does not seek to deal with all his recommendations.
The consultation does not attempt to deal with referral fees,
fixed recoverable costs in the fast track, the establishment of
a Costs Council, costs and case management, before the event funding,
third party funding, predictable damages and Lord Justice Jackson's
more specific recommendations in relation to case handling with
clinical negligence indemnifiers. Our understanding is that these
elements of Lord Justice Jackson's recommendations are still under
scrutiny and may be subject to further consultation in the future.
We would be concerned if Lord Justice Jackson's proposals on conditional
fee arrangements are ultimately implemented in isolation; we strongly
feel that his recommendations, taken as a whole package, are a
powerful tool in ensuring that litigation is affordable for society
as a whole.
7. One aspect of the Green Paper which is disappointing
is the suggestion that in complex personal injury cases where,
it is argued, it may be uneconomic to run the case under the capped
success fee of 25% of damages, excluding any damages for future
care or future losses, an option might be to have no cap or alternatively,
to allow for success fees to remain recoverable in such cases
from unsuccessful defendants. The consultation makes no attempt
at defining what a "complex" case might be. It is important
to note that a low value clinical negligence claim can be as complex
as a high value claim and indeed the clinical and liability issues
in a high value claim can be relatively straight forward. Our
concern would be that ambiguity as to what "complex"
means would lead to costly satellite litigation with claimant
lawyers arguing for a more advantageous costs regime on those
cases. We also question the fairness of an arrangement whereby
the claimant's entitlement to the inviolability of damages depends
on a test of complexity. We would have concerns about any measures
which seek to dilute Lord Justice Jackson's proposals.
What action could the Government be taking on
legal aid that is not included in the proposals (for example,
on Very High Cost Cases)?
8. MPS has an interest in the Green Paper on
the provision of legal aid insofar as a small number of clinical
negligence claims in England and Wales are conducted on the basis
of legal aid funding. We can only agree with the Lord Chancellor's
views that the system requires fundamental review and we agree
that the country can ill afford the current costs associated with
the legal aid scheme. Nevertheless, we are concerned that the
Lord Chancellor proposes the abolition of legal aid funding for
all clinical negligence cases subject to the availability of funds
in exceptional cases.
9. MPS believes firmly in the principle of affordable
access to justice and we can well appreciate that there may be
lawyers who would be unable or unwilling to take on highly complex
cases requiring early expensive expert input on behalf of claimants
with very limited financial means and indeed that there will be
claimants who would be deterred in pursuing a claim for the same
reason. We feel that it is only right that legal aid funding be
available to fund cases for the most vulnerable patients; for
example children who have suffered severe brain or physical injuries.
We would suggest that a further refinement might be, subject to
means testing, to allow legal aid funding to be available for
preliminary investigations in such complex cases with claimant
lawyers then undertaking to transfer the claim to a conditional
fee arrangement if it became clear that the claim had merits.
The costs which were incurred whilst the case was being handled
under the legal aid scheme would be recoverable as part of the
costs recovered by the claimant from the defendant in the event
that the claimant is successful.
December 2010
| 
