“Essential” disbursements should be funded by the wrongdoer
Injured patients should not have to shoulder the costs of building their cases in the upcoming low-value fixed costs scheme, APIL has told the Department of Health and Social Care (DHSC). The association has responded to a DHSC consultation on how disbursements will work in the new low-value fixed recoverable costs scheme for clinical negligence claims, which comes into effect in April.
“Disbursements can be essential in order to gain the fair and just outcome needed for the injured patient. But the costs of many disbursements will not be recoverable under the current plans for the new regime,” said Guy Forster, APIL executive committee member.
“Counsel advice fees are excluded from the scheme, except when the case involves children or vulnerable parties. But there are many circumstances where the instruction of counsel would be entirely reasonable for a low-value clinical negligence claim, including when the scope of duty is not clear, or simply to provide independent advice,” Guy explained.
“It is a mistake to link the value of a claim to its complexity,” he went on. APIL believes that professional medical records collation, sorting and pagination fees should also be recoverable in the low-value fixed recoverable costs scheme.
“It is only fair and just that if the claimant is successful in their claim, they should be able to recover the reasonable costs of doing so and those costs should be shouldered by the wrongdoer,” said Guy.
“Injured patients are only in the situation of making claims at all because of negligence. They do not ask to be harmed,” he said.
APIL also criticised the Government’s timetable for implementing the reforms and the lack of available detail.
“There are several, significant problems in the Government’s plans, not least is the alarming speed at which it intends to implement them, particularly given the substantial holes in the detail,” said Guy.
“It still remains unclear, for example, where a case is to go should it exit the new system and there is also no information about how inquest costs will be recoverable separately to the scheme.
“With only six months to implementation, the lack of detail in the Government response to the 2022 consultation and in this further consultation on disbursements is extremely worrying,” said Guy.