Response of the Law Society of England and Wales to the Department of Health's pre-consultation on reducing costs in clinical negligence claims

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1 Response of the Law Society of England and Wales to the Department of Health's pre-consultation on reducing costs in clinical negligence claims August 2015

2 Response of the Law Society of England and Wales to the Department of Health's preconsultation on reducing costs in clinical negligence claims Introduction The Law Society of England and Wales is the representative body for over 159,000 solicitors in England and Wales. It negotiates on behalf of the profession, and lobbies regulators, government and others. The Law Society welcomes the opportunity to respond to this preconsultation. Those who have been harmed through no fault of their own following failures in NHS care need expert support in order to seek redress. The NHS itself needs to learn from mistakes. Analysis of clinical negligence claims is a vital source of that learning. Proposals in this pre consultation could put at risk patient redress and reduce learning opportunities for the NHS. If a scheme were introduced and fixed costs set too low, solicitors might be driven to stop offering services in clinical negligence, restricting access to justice and reducing the incentive on the NHS to stop harming people. The costs payable in every successful case against the NHS are either agreed by the NHSLA or have been assessed by an independent Judge as being reasonable and proportionate. The more successful cases against the NHS where the NHS has maintained that it was not negligent, or has contested quantum will result in a greater cost burden to the NHS. This is the context for our response. The Law Society accepts that the introduction of fixed recoverable costs may be appropriate in some types of legal case. Indeed, the Society was instrumental in supporting the Road Traffic Accident Claims Portal which provides for fixed costs for certain claims for damages up to 25,000, where liability is not in dispute. The Society also supported the recent 'horizontal' extension of the portal to bring into the scope of fixed costs certain employers' and public liability cases. The introduction of fixed recoverable costs can provide greater certainty for both sides and avoid disputes about the level of costs, and is aligned with the wider case management and costs budgeting procedures introduced under the general auspices of the Jackson Review of Civil Litigation Costs. The Society does not oppose the principle of fixed costs provided that: the recoverable fixed costs should usually only apply to genuinely 'low value' and non complex claims where the issues are straightforward; the costs must be fixed at a reasonable rate for the work done and to allow for the work to be carried out effectively and efficiently; there must be scope for exemption for complex or unusual cases; there must be strong empirical evidence and research undertaken to justify the initial setting of the rates as well as the level of thresholds;

3 the rates and thresholds must be regularly reviewed and increased by reference to appropriate indices; court procedures and court rules should be properly aligned along with their introduction; appropriate and efficient IT in the court system should be introduced to support the fair and effective delivery of any new fixed costs regime. Unless these conditions are satisfied, it is unlikely the introduction of fixed costs would gain the confidence of those solicitors who undertake clinical negligence work. This would lead to fewer solicitors undertaking the work and access to justice would be detrimentally affected as a consequence. In the field of clinical negligence there are further points of principle that will need to be comprehensively addressed before considering the introduction of any scheme of fixed recoverable costs. The first point to note is that cases of clinical negligence often involve much more significant levels of injuries. For example, in 2014/15 the NHS Litigation Authority (NHSLA) spent 1,169,586,958 on clinical negligence claims, including interim payments 1, and 41%of that was paid for obstetrics claims - cases mainly involving babies that had suffered often serious brain damage. The amount of legal costs that are sought and, after being agreed, paid out on such cases is largely dwarfed by the cost of the damages that are awarded. So, as a point of first principle, the simplest and most effective way of satisfying the Government's policy aim of reducing the cost of clinical negligence actions is to reduce the incidence of avoidable harm caused through clinical negligence by the NHS. The Society strongly believes that Government's first focus should be in reducing incidents of harm rather than focusing exclusively on the lowering the very necessary legal costs that are often involved in bringing such important and significant cases to a proper conclusion. The second point of principle is that clinical negligence claims are almost always brought by people who have been injured through no fault of their own but solely by apparently negligent NHS care. As such, claimants or their representatives need specialist advice from an experienced solicitor to help them secure the compensation the law provides they are entitled to, in order - as far as possible - to put them back in the position they would have been in if avoidable clinical negligence had not occurred, including sometimes to pay for the 1 NHS Litigation Authority Report and Accounts 2014/15, p15

4 sometimes substantial costs of future care that some injuries necessitate. Unlike most accident cases, clinical negligence claims require evaluation of often extensive medical records, instructing clinical experts in the same field as the negligent doctor to work out whether there has been negligence at all and also make an assessment of the extent to which any negligence caused the injury concerned. The NHS and individual clinicians obviously have an excellent understanding of the clinical issues in the case and are always represented by experienced litigation lawyers. The patient rarely has access to all of the facts of what happened or any independent witness. Patients who believe that they have been harmed by clinical negligence simply cannot successfully take on this huge institution of the state without the assistance of specialist lawyers and relevant experts. Additionally, care needs to be taken in ensuring that the most up-to-date assessment of actual and current legal costs in clinical negligence cases is made whilst these issues are being debated. The reforms introduced by LASPO mean that, in respect of legal funding agreements signed with effect from 1 April 2013, potentially quite large additional liabilities which formerly fell on the defendant (such as the success fee) are now payable by the successful claimant and not the unsuccessful defendant. In clinical negligence cases, it is not uncommon for a period of 18 months to elapse between solicitors being instructed and a letter of claim being sent as significant enquiries are often necessary properly to assess the merits and value of a claim. It is also common for claims to take longer than 12 months to conclude after legal proceedings have been issued. Consequently, many 'post-laspo' claims have yet to pass through the system and be completed. It is likely that, as the LASPO changes become embedded, legal costs to the defendant will fall substantially through the operation of the Jackson reforms. Furthermore, the post-laspo cases that have settled so far are likely to be less complex, which will lead to serious over-estimation of the level of necessary costs in any post-laspo arrangements. The full effects of LASPO are yet to work through the system in any substantive way, and the Department's failure to take into account the impact of LASPO on recoverable costs is a fundamental flaw in the reasoning that has led to the conclusion that a new scheme of fixed costs should be introduced. Proposals that could have a serious deleterious effect on the ability of victims of clinical negligence to seek justice and secure redress must be based on robust, rigorous and up to date data. The Law Society recommends that, instead of rushing to introduce a fixed costs scheme on the basis of inadequate, unpublished and premature data, there should be a proper, robust and transparent independent review of the impact of LASPO on the volume of claims received, the value of damages awarded and the associated actual legal costs recovered. If, despite this fundamental weakness in its thinking, the Department of Health were to decide to press ahead with further methods to reduce legal costs, that would be seen as a

5 telling implication that LASPO has not been effective in the way that the Government initially envisaged it. Critically, the review proposed by the Law Society might show that recovered costs have in fact come down substantially as a result of LASPO. In considering the ongoing proposals it will also be crucial that any introduction of fixed recoverable costs (should they nevertheless be introduced) does not undermine the ability of people injured (through no fault of their own) to be able to seek and receive the compensation they need. If the rates of fixed costs were set too low then this could severely restrict injured patients' ability to claim damages for often life-changing injuries. The reason for this conclusion is that this highly specialist legal work might become financially unviable and practitioners who have invested years in becoming expert in this field will not be able to sustain their practices. Any gap in the market may be filled by claims management companies and non-specialist lawyers who may not have the necessary skills and expertise to manage such cases properly and effectively. This could also result in much greater numbers of spurious and ill-conceived claims being brought in future, which would be the diametric opposite of the Government's stated policy intention. There is also the additional risk of large numbers of self represented litigants bringing their own claims and overwhelming the already over-stretched courts. Additionally, the proposals have a particular constitutional significance. This is because clinical negligence claims are made by injured people against the state which, even in a time of austerity, has relatively significant resources to defend itself against such actions. There is clearly a potential inequality of arms between the individual injured citizen seeking to bring an action and the better-resourced state that has to defend against them. It is crucial that the already significant inequality of arms is not further exacerbated by the Government changing the costs rules in such a way that places itself in an even more privileged position in relation to people who bring justifiable actions against it for clinical negligence. There are strong rule of law grounds to necessitate very strict scrutiny indeed of any proposed changes to the costs rules in clinical negligence cases. Strong weight also needs to be given to the long established principles of the law of tort, which exist not just within the law of England and Wales but internationally. Liability for negligence that causes harm to others is necessarily required to be compensated and careful scrutiny is essential to ensure this fundamental legal principle is not undermined. It should also be noted that the proposal, as set out in the pre-consultation, is for a fixed fee regime for low value claims up to 250,000. The Department does not limit this proposal to cases where liability is admitted quickly, but apparently intends that it should apply to all

6 cases. This is in stark contrast with the low fixed fees Portal for ordinary personal injury cases, which applies only to claims valued up to 25,000 and - rightly - where liability has been admitted within a matter of weeks. Fixed fees have also now been introduced in the Fast Track for disputed liability cases, but only relating to accidents after July 2013, so relatively few cases will have concluded. As far as the Society is aware there has been no analysis of the impact of the fixed fee regime. Moreover, the fixed fees for personal injury were based on an empirical survey of a large data set of costs by economists as a starting point for the figures. Clinical negligence cases are invariably allocated to the multi-track. There is very little experience of fixed fees there. There has been no analysis of data by independent experts to work out the incidence of costs or what appropriate ratios of costs to damages there might be to enable necessary work to be done. There is no suggestion in the pre-consultation document of changes in practice by defendants to encourage early admissions with commensurate saving of cost (as in the Portal). It is hard to escape the conclusion that the proposal is entirely cost driven with no thought as to the consequences for victims of clinical negligence. For these reasons and also in order to safeguard and protect the NHS and patients, the Law Society urges the Department of Health through the course of the consultation period, to listen extremely carefully to expert practitioners when it considers whether or not to go ahead with the scheme and, if so, on what basis. If, despite the lack of relevant data, a decision is taken to introduce fixed recoverable costs, they must be set at a sustainable and fair level that will enable this important protection for citizens to continue effectively for an appropriate level of return, while recognising the necessary costs of efficient legal practice. This will involve recognition not only of the fact that by its nature this work is specialist but also the importance of this work to the more grievously injured victims of clinical negligence so the scheme should only apply to truly simple, straightforward and genuinely low value cases. Finally, the Law Society has very considerable and major concerns about the proposed speed of implementation of the reforms. While welcoming the Department of Health's preconsultation during the month of August and the offer of specific focus groups between practitioners, the Society and officials, the overall timescale for the consultation seems particularly short given the importance and complexity of the issues that need to be addressed, especially considering the necessary approach to sound and well-managed public policy that the Government will want to demonstrate. We are particularly mindful, again, of the Government's consultation principles, which state that "For a new and contentious policy, 12 weeks or more may still be appropriate."

7 Over the course of the Autumn the Law Society will be further considering its policy position in relation to the specific points that are likely to be raised in the formal consultation. In particular, the Society intends to consult directly with practitioners, including specialist claimant and defendant solicitors, as well as more widely with other stakeholders. The following responses to the Department of Health's specific pre-consultation questionnaire should therefore be treated as preliminary. Questionnaire The Government proposes to introduce fixed recoverable costs for all cases where the letter of claim is sent on, or after, the proposed implementation date of 1 st October Although this could affect cases where solicitors are already instructed but a letter of claim has not been sent, it leaves at least 12 months for such claimants to submit a letter of claim and so avoid the application of the proposed fixed recoverable costs regime. 1. Do you agree with this proposed approach to the transitional provisions? Yes or No If your answer is no, please explain how you consider the transitional provision should be set, having regard to the need for the effect of fixed recoverable costs to apply as soon as practicable. The proposal raises four questions: - should there be a fixed recoverable costs (FRC) scheme for clinical negligence cases? - what stage should trigger determination of the date from which any new scheme is applicable; - if a scheme is to be introduced, should there be transitional provisions? - when should the transitional provisions end? The Law Society has considered each of these questions in turn. Should there be a fixed recoverable costs (FRC) scheme for clinical negligence cases? As set out in the introduction above the Law Society does not oppose the principle of fixed costs, but costs should usually only apply to genuinely 'low value' and non complex claims where the issues are straightforward, and must be fixed at a reasonable rate for the work done and sufficient to allow for the work to be carried out effectively and efficiently. However, as expressed, we do not believe the Department has made a case for change with respect to clinical negligence. In particular, the proposals are based on data on cases settled in i.e. before the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 came fully into force and before any assessment has been made of the impact of those significant changes on costs. This matters because the reforms introduced by LASPO mean that, in respect of legal funding agreements signed with effect from 1 April 2013, potentially quite large additional liabilities which formerly fell on the defendant (such as the success fee) are now payable by the successful claimant and not the unsuccessful defendant. Failure to recognise and assess the impact that the LASPO reforms are having is a fundamental flaw in the reasoning that led to the conclusion that a scheme of the kind proposed should be introduced. Instead, the Law Society recommends that, before a decision is taken to introduce a new

8 scheme, there should be a review of the impact of LASPO on the volume of claims received and the value of damages awarded. This and other data is critical to inform the decision on whether or not any further action on costs is necessary. In advance of this review, the Law Society believes it would be helpful for the Government to set out the total value of claimants legal costs paid in each month from April 2014 until July The Law Society notes the statistics set out in the pre-consultation document, on which the proposal is based. We trust that, in line with its consultation principles, the Government will ensure that "sufficient information is made available to stakeholders to enable them to make informed comments" 2. That information would necessarily include the data provided by the NHS Litigation Authority on claimants legal costs for cases in 2014/15, used to compile the table in the letter showing claimants legal costs for cases in 2014/15 as a percentage of damages awarded for cases. In particular the Department should demonstrate how this data supports the statement that claimant legal costs are often (added emphasis) more than six times those of defendant costs 3. The Department should also provide a breakdown of the data as follows: solicitors' costs prior to any success fee being applied; success fees and After The Event insurance costs; counsels' fees; court fees and charges; interest on late payments of lawyers' fees, expert fees and other disbursements; and VAT. The Department should present the data with respect to pre-laspo cases and post-laspo cases separately. We would also ask that the Government set out the fees paid to NHS LA defence panel firms in connection with all work undertaken by the panel on clinical negligence claims and inquests. Specifically:- Any fixed costs arrangements payable for each claim and how these are applied in other words broken down to show the amount payable for each aspect of the claim, be it against the pre-action protocol, or otherwise. Circumstances where fixed costs are not payable and where hourly rates would apply. The amount paid per hour to panel defendants based on grade and experience. The total amount paid by way of fixed fee, broken down between defending clinical negligence claims and inquests. The total amount paid by way of hourly rate, broken down between defending clinical negligence claims and inquests. The total amount payable to experts, broken down by defendant experts and claimant experts and joint instructions. Total amount payable to Counsel, broken down by amounts paid to Counsel instructed by claimant, defendants (and if applicable jointly). The Law Society asks also that the Government provide a copy of the contract in place between the NHS LA and its clinical negligence panel, and the following information: the total number of claims taken to trial and % win split by defendant/ claimant. the total number of claims where proceedings were issued. Finally, the Law Society also recommends that the Government clarify whether or not the proposed new scheme would apply in Wales and, if so, on what basis, especially given the existing Redress scheme in Wales. 2 Oct-2013.pdf 3 Letter dated 4 August 2015 from Michael Richardson, DH, to Catherine Dixon, CEO, The Law Society.

9 What stage should trigger determination of the date from which any new scheme is applicable? This should reflect the average time between the date of the incident, death or injury, and the date of the letter of claim, with more complex cases sometimes taking considerably above the average. Therefore, the Law Society recommends that the stage that should trigger determination of the date from which any new scheme should be the date of the incident. Because this might cause a long tail of cases that would have to be considered under the current system, the Department could consider a 'long stop' whereby the scheme would be applicable to all cases, irrespective of the date of the incident, from a specified date some time further into the future. If a scheme is to be introduced, should there be transitional provisions? The Law Society agrees that, if a scheme is to be introduced, there should be transitional provisions. It would be wrong and unfair to many victims of clinical negligence to introduce any fixed costs scheme on an expedited basis. A lack of transitional provisions would create immediate issues from the standpoint of access to justice as many victims who have already suffered from a medical accident will have already consulted legal advisers about the merits of making a claim and investigations will already be under way. It is not unusual for claims to be investigated over a 18 month period from the date of first instruction to sending a letter of claim and significant costs will have been incurred during that initial process due to the requirements of the Civil Procedure Rules. The uncertainty of the amount of recoverable costs that would arise if there not transitional provisions would be unjust, particularly for those victims who have already suffered injury as a result of negligent medical treatment. When should the transitional provisions end? The Law Society cannot form a definitive view on this point without sight of the full proposals. It is important that there should be a clear and unequivocal date for any new regime so that there is clarity for those claiming negligence and those defending against such claims about what provisions would apply. However, the proposed start date of 1 October 2016 would be less than a year from the date on which the Department currently proposes to start the formal consultation on whether or not to introduce a fixed costs scheme. The time taken for investigations prior to the letter of claim suggests a start date of no earlier than 1 April 2017 or 18 months after the date on which the new rules are agreed. This would seem likely to strike a more appropriate balance between achieving the benefits that the Government suggests would result from the new scheme and the impact on claimants that are already discussing potential litigation with their legal advisers. Moreover, there is the opportunity to learn from past experience and aim for a well-managed transition over a number of years, ensuring a fair approach for the victims of clinical negligence. Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 1 April 2013, which led to a significant increase in the number of cases before the implementation date. If the date for the end of the transitional provisions for the proposed new clinical negligence scheme were set too soon, it would cause a spike of claim notifications which may be difficult to manage. Furthermore, claimant solicitors undertake extensive analysis and assessment of potential claims and carefully review the merits of a case prior to sending a letter of claim and this frequently results in 80% to 90% of potential clients - in the end - not making a formal claim.

10 Where such triage was cut short or otherwise constrained because of an unduly early implementation date, there is the risk that the NHS Litigation Authority would be inundated with claims, which it would be unable to deal with effectively without additional resources and at a further cost to the public purse. The Government considers that the Fixed Recoverable Costs (FRC) scheme could be applied in clinical negligence to cases up to a value of 250,000 in damages and will apply both to pre-issue costs and post-issue, pre-trial costs. 2. Up to what value of damages do you think should be applied to the FRC regime? a. Up to 25,000 b. 25,000-50,000 c. 50, ,000 d. 100, ,000 Why do you believe this to be the right threshold? The proposal raises three questions: - what types of clinical negligence case should be subject to any new scheme? - what should be the basis of any new scheme? - if the intention is to apply fixed costs to low value cases, at what levels should costs be fixed? The Law Society has considered each of these questions. What types of clinical negligence case should be subject to any new scheme? The Law Society recommends that, if a scheme is to be introduced, it should apply only to genuinely non-complex cases of clinical negligence where the letter of response to the letter of claim constitutes an admission of full liability and where the value of damages then awarded are less than 25,000. Cases above that are almost certainly going to have levels of complexity that make fixed fees inappropriate and unfair. Unlike personal injury cases, liability and causation are issues in most clinical negligence cases and this is what drives complexity and cost. The Law Society's proposal of 25,000 would fix costs for all claims with respect to a minor injury, while excluding cases of death and more complex cases, for example where there were multiple defendants. In addition, by applying fixed costs to cases where liability was admitted at an early stage, the Law Society's proposal would remove the theoretical incentive that there would otherwise for the defendant side to delay the case in order to lead the claimant side to withdraw on the basis that it was no longer viable to pursue the case because the fixed costs threshold had been exceeded. Similarly, it would remove the incentive for claimants to increase the damages claimed, especially in cases where the value would otherwise fall just below the level at which damages were fixed. Finally, the Law Society notes that the proposals ignore the need for representation at inquests in circumstances of death. These cases are of public importance and often take place to ensure public safety. At the moment, the costs of representation at inquests can normally be claimed in the costs of the successful subsequent clinical negligence claim, but that would of course be lost with a fixed fees scheme. Unless inquest fees were out side the scheme, it would become financially difficult for law firms to support families at inquests as many do at

11 present because theirs costs would not be recovered in either successful or unsuccessful clinical negligence cases. What should be the basis of any new scheme? The Law Society recommends that, provided the scheme is limited as it has proposed, to genuinely non-complex cases of clinical negligence where liability is admitted in full and damages then awarded are less than 25,000 the scheme should be based on value. If the intention is to apply fixed costs to low value cases, at what levels should costs be fixed? In its pre-consultation, the Department has indicated the scheme should apply to claims up to a value of 250,000, a quite staggeringly high level that would include claims for people who have been very seriously harmed. This is in stark contrast with the current upper limit for fixed costs for the usually less complex areas of employers' liability and public liability claims, where costs are fixed through a portal for claims up to 25,000. As set out already, the Law Society recommends that any fixed recoverable costs scheme for clinical negligence should only apply to genuinely non complex claims where liability is admitted at a prelitigation stage (for example, in response to a letter of claim- therefore incentivising the defendant to settle quickly in appropriate cases) and the damages then awarded are less than 25,000, ie low value cases. In many clinical negligence cases it can be difficult to assess the full value of a claim from the outset of the case. Additionally, setting too high a level could result in: an even more unequal playing field and an increased 'inequality of arms' between litigants, as the NHSLA will generally have more significant resources to defend cases than the claimants bringing those cases; a potential increase in costs to the victims of clinical negligence (because to make the conduct of such cases economically viable more of the costs of the case may have to be applied to the claimant's damages, thereby causing a reduction in their compensation) and thus undermining the purpose of justice. The thresholds for the application of fixed costs and the levels of recoverable costs in any consequent fixed costs scheme should not be set in an arbitrary manner and should be supported by comprehensive and robust empirical evidence and research justifying the thresholds and levels at which costs are fixed. This is a key component of effective and wellmanaged public policy. While we understand that no such analysis has yet been put in hand, The Law Society assumes that the full consultation document will set out the evidence underpinning its final detailed proposals. In this respect, The Law Society notes that the recent attempt by the Civil Justice Council Costs Committee to review and revise the more general levels of recoverable Guideline Hourly Rates was quite properly abandoned because of the lack of robust research and data. The Government is also concerned with the number and cost of expert reports obtained in lower value cases, which can add to the disproportionate costs incurred. The Government is therefore considering a proposal to cap experts' fees at a maximum recoverable sum which fairly reflects the likely number and cost of experts' reports needed in such cases. Under this proposal, the cap would apply to all reports both on liability/causation and on quantum/diagnosis.

12 3. Do you agree that capping experts' fees in this way would be a useful way forward? Yes or No If your answer is no, how would you propose that the use of experts and the cost of their reports might best be managed, particularly before the first case management conference? The Law Society recommends that any new scheme is underpinned by: - a cap on the total level of fees payable to each individual expert; and /or - a fixed maximum day rate; - a clear definition of what constitutes an expert for these purposes. The Law Society would support the capping of experts' fees but as long as the experts themselves are limited in the amount that they can actually charge. It would be grossly unfair if a victim of clinical negligence had to pay experts' fees in excess of the amount recovered from the unsuccessful defendant. Furthermore, any capping of recoverable experts' fees would need to apply to both sides in the litigation as there can be cases where the claimant has lost the benefit of qualified one way costs shifting (e.g. by failing to beat a Part 36 offer). Finally, it is quite inappropriate to have a single cap for all experts regardless of the number needed to bring the case. The introduction of capping could also have a serious effect on the After The Event (ATE) market, which could result in an increase in premiums. Most, if not all, ATE policies cover the payment of disbursements as and when they are incurred and ATE insurers therefore expect to be fully reimbursed for this outlay. Capping could lead many ATE providers to withdraw from the market, which could mean victims of clinical negligence were unable to find sufficient cover at an affordable price. Care should also be taken because there is a scarcity of experts in some medical disciplines and any move to cap experts' fees should be designed in a way that minimises the risk that experts are not prepared to undertake such work, which again could mean victims of clinical negligence were unable to find expert support needed to ensure they have access to justice. Our provisional thinking is that the fixed recoverable costs and ancillary rules would be sufficient to control behaviour on both sides and that no further sanctions would be required than currently appear in the rules for fixed recoverable costs generally. We consider that to this extent, the behaviour issues likely to be encountered in introducing fixed recoverable costs for clinical negligence will be no different from those encountered in other personal injury claims. 4. Do you agree that no special provisions will be required to control behaviour in clinical negligence claims? Yes or No If no, what sort of Rules do you feel would assist in controlling behaviour alongside Fixed Recoverable Costs? The Law Society recommends that special provisions would be needed to control the behaviour of all parties. In particular, there should be sanctions for unnecessary delays in dealing with claims, including failure to admit liability at the earliest stage where it is properly possible to do so on the basis of the available evidence, or mounting a defence that was fundamentally flawed. Indemnity costs may have a place to play in this. There may also be ways in which the handling of claims by individual NHS Trusts could be managed more efficiently so that consideration of the merits of a claim, and a decision on

13 whether or not to admit liability, comes earlier in the process. This could be expected to speed up decision-making, reducing costs and, where liability was admitted, ensuring justice for patients at a much earlier stage. The Law Society recommends that, to support implementation of the duty of candour 4, the Department should develop proposals for identifying and sharing good practice among foundation and non-foundation trusts with respect to the handling of complaints and claims for clinical negligence, including engaging with the NHSLA at an early stage to determine whether liability should be admitted. It should be noted that The Law Society does not currently have any direct institutional involvement with the work of the Civil Procedure Rule Committee. For this reason, any proposed changes to the rules should also be the subject of a proper public consultation and sufficient time allowed to respond. For pre-issue costs, the Government is proposing a sliding scale for the fixed recoverable costs, calculated by reference to the level of damages agreed. This type of approach has been used successfully with other fixed recoverable costs regimes; it has obvious benefits in terms of applying proportionality and it is also acknowledged that it should encourage the solicitor to ensure that damages are recovered at the appropriate level. (The proposal for post-issue, pre-trial costs is likely to be for fixed costs in various stages according to when the case is settled.) 5. Do you agree with a sliding scale pre-issue? Yes or No If no, please explain what you would consider to be a more appropriate fixed costs structure for pre-issue cases. The Law Society is unable to offer a response to this question without greater detail of what is proposed. That said, any sliding scale approach would depends on what work is involved at each stage of the case and it will be necessary for the Government to explain the rationale for the calculation of the scale and the amounts of fixed costs proposed. Moreover, it is also not always easily possible to assess the reasonable cost of a clinical negligence case based upon its value as the type of injury involved and the complexity of the claim is also often relevant. Furthermore, in any potential claim, whatever the value or type of injury, a necessary irreducible minimum amount of pre-issue work is always involved in order to assess the merits of the case and to make an assessment of possible quantum. The introduction of any sliding scale pre-issue costs scheme should also only be considered in conjunction with a full review of the Civil Procedure Rules with a view to simplifying preissue procedure and evidential requirements. Such a review should also consider the advantages of early admissions of liability and the consequential reduction in costs that this could entail. The Department proposes that for post-issue, pre-trial costs is likely to be for fixed costs in various stages according to when the case is settled. However, it is unclear how this would sit with cost budgeting. Moreover, LASPO is still embedding and it is certainly too early to say that cost budgeting is not working. The Law Society recommends that the 4 Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 20

14 Department consider applying any new fixed costs scheme to pre-issue costs only. The Law Society also recognises that the Department is required to undertake a through equality impact assessment of the details of the proposed scheme, which should be published with the consultation, to ensure that the scheme would not result in particularly negative consequences for any group, for example children or adults with mental health problems or disabilities unrelated to the claim, women (as a result of the gender pay gap), the elderly, citizens on a low income or unemployed and others less able to pay for specialist advice they might need to pursue a claim. The proposed scheme might discriminate in other ways also, for example where two claimants have suffered identical injuries but their salaries are very different, the one with the greater claim, because of a higher loss of earnings, might fall outwith the scheme whereas the one with the lesser claim might fall within it. In conclusion, the full effects of LASPO are yet to work through the system in any substantive way, and failure to take into account the impact of LASPO on recoverable costs is a fundamental flaw in the reasoning that has led to the conclusion that a new scheme of fixed costs should be introduced. The Law Society recommends that, instead of rushing to introduce a fixed costs scheme on the basis of inadequate, unpublished and premature data, there should be a proper, robust and transparent independent review of the impact of LASPO on the volume of claims received, the value of damages awarded and the associated actual legal costs recovered. Proposals affecting the ability of victims of clinical negligence to seek justice and secure redress must be based on robust, rigorous and up to date data. If the Government were to ignore this and decide to introduce a fixed recoverable costs scheme for clinical negligence, the scheme should only apply to genuinely non complex cases where the letter of response to the letter of claim constitutes an admission of full liability and where the damages then awarded are less than 25,000, ie low value cases.