Justice for All? Compensation for claimants

Clinicalnegligenceb&w

“In a civil court case the claimant who succeeds against a defendant will receive, where appropriate, an award of compensation and the loser will pay all the winners costs of the claim.”

True or false?

In fact, the above statement is false as claimants normally only get the loser to pay a contribution towards their costs. Losers do not therefore normally pay all of a winner’s costs. Further, when they do pay any of the costs, it is inevitably only after a lengthy and often bitter dispute.

In addition, costs judges will also normally, when considering if any item of costs should be paid by the loser, decide on that issue by giving the benefit of any doubt to the loser.

Defendants have benefitted from these protective measures for many years, but many lay people may be surprised to find out that this is the case.

On 1 April 2013, defendants who lose claims received some further benefits from major reforms, spearheaded by Lord Justice Jackson. In personal injury cases, including clinical negligence cases, the loser was no longer expected to pay the claimant’s lawyer’s success fee where a “no win, no fee” agreement was in place. Secondly, the cost of the insurance premium for so called “after the event” insurance (invariably taken out by claimants at the start of a case) could no longer be recovered from the loser (exceptionally in clinical negligence cases the loser could still, after 1 April 2013, be forced to make a limited contribution to the cost of such insurance).

Successful claimants therefore now face deductions from their compensation after 1 April 2013 to cover these items whereas prior to that date the loser picked up the bill so to speak for them.

Some commentators have observed that the tide has turned in favour of defendants as successive governments have apparently listened to defendants, insurance companies, the NHSLA and medical defence unions and have pursued pro-defendant reforms.

The pace of pro-defendant reform seems to be picking up again this year bar what might be a temporary hiccup. What next you may ask?

The government wants to protect defendants who lose even more by further restricting how much the loser pays to the winner in terms of costs. The government wants to introduce fixed costs for all civil claims (not just personal injury and clinical negligence cases) to a value of up to £250,000 (probably the majority of claims).

The government was to issue a consultation paper at the end of 2015. That consultation was then put back to early 2016 – and guess what? The consultation has yet to be issued!

Health minister, Ben Gummer, had stated earlier this year that the government intended to bring in the fixed costs regime (to include clinical negligence cases) in October 2016.

This week the government’s plans seem to have changed and now it appears that the reforms will not come into effect this year after all.

Why? Well, government business has been somewhat dominated by the Referendum – so once that is over, will claimants be targeted once more by the government?

Whose side is the government on you may ask?

Not, I fear, on the side of claimants, who include accident victims and patients who have suffered as a result of clinical negligence. The reforms introduced in 2013 are proof of that.

Still not convinced? Then see whether the proposed consultation process later this year is just a paper exercise and whether despite strong protests against fixed costs the government pushes through their proposal anyway.

“Justice for all?”

If only.…

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Isabel Hodgson

Legal Executive, Trusts & Estates

Isabel is a specialist in Wills, probate, trusts, estate administration and powers of attorney. Before joining Hart Brown, Isabel worked at another law firm for...

Legal Executive, Trusts & Estates

Isabel Hodgson

Isabel is a specialist in Wills, probate, trusts, estate administration and powers of attorney.

Before joining Hart Brown, Isabel worked at another law firm for 10 years, qualifying as a Legal Executive in 2011, obtaining Fellowship in 2015.

Isabel is also an Accredited Member of Solicitors for the Elderly.

A friendly solicitor, Isabel can be found at our office in Cranleigh, an area she knows and loves.

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