How long do you spend buying a pair of shoes? Ten minutes? Five? Fifteen at the most?

What about a bicycle? Perhaps weeks of research followed by 15 minutes in the shop?

Your first home? Months of viewings followed by hours and hours of meticulous research and planning? Maybe you would get some advice: perhaps an estate agent, a mortgage advisor and even a house finder?

You’re spending a lot of money and you’ve got to get it right.

It’s fair to say the bigger the purchase, the longer it takes and the more advice and help you may need.

What if you were purchasing products and resources to support your child’s needs throughout their entire life and for years and years after you were gone? When making your decision you must remember that this is a once in a lifetime opportunity and you can’t return for the shop down the line if the care package doesn’t fit, if the therapies start to unravel or there are holes in the transport and accommodation regimes.

These are the difficult decisions facing the families of children who have suffered brain damage or cerebral palsy because of a preventable mistake.

In response, Jeremy Hunt today put forward proposals for a new system of ‘fast-track’ compensation for children left suffering brain damage or from cerebral palsy as a result of medical errors. He thinks that the new system will help the child. He thinks that the new system will help the parents. He really thinks that the system will also break up what he terms a “compensation culture” in the NHS.
Jeremy Hunt suggests that a system based on the Swedish model of compensation will be cheaper and save money.

It is worth taking a closer look at the Swedish system that is being held up as a shining example. The Swedish system operates in all medical accident cases and not exclusively in the higher value brain injury cases as is being proposed here.

In the Swedish system although about 9,000-10,000 general clinical negligence cases are processed in Sweden annually, compensation is paid in barely half of these cases. Significantly the Swedish system does not claim any expertise in brain injury cases.

In the UK, compensation arising from brain injury is given to cover a child’s needs throughout his or her entire life. In most cases will include provision for a lifetime of:

• Care
• Physiotherapy
• Occupational therapy
• Speech and language therapy
• Assistive technology and equipment
• Transport
• Appropriate accommodation for the child and their family
• Special educational needs
• Loss of earnings
• Professional costs associated with managing the award of compensation

These are not quick fix issues.

Assessing how a child has been affected by brain damage requires careful expert assessment – Does a child meet milestones in terms of development, will time consuming treatment help – if so how much? Is the person likely to need increased care as their condition develops or as their loved ones are less able to care for them? These are assessments that take time and require expertise.

Perhaps it is helpful to point out what these tragic cases are NOT about: –

• They are not about a ‘compo claim’ as the media would have it. Those affected would give anything not to have had to make a claim in the first place.
• They are not about speed. They are about ensuring a life time provision of care and assistance for someone who will always need help. That takes time. Payments should be made on an ongoing basis until enough is known to accurately assess what lifetime need is likely to be.
• They are not about learning lessons. Lessons should be learned but linking recompense to learning lessons is unnecessary. The NHS should have a commitment to preventing future occurrence anyway. In any event, lessons are not being learned. Only last year, a report by the Care Quality Commission found that 37 per cent of maternity services were “inadequate” or “require improvement”. Shockingly, Britain still has one of the worst stillbirth rates in the Western world according to international rankings.

As we all know – prevention is better than cure. What is Jeremy Hunt doing to prevent serious brain injury occurring in the first place?

The first port of call for many concerned parents isn’t litigation, it is the NHS Complaints system.

Put simply, the complaints procedure in the UK doesn’t work. Even the Public Administration Select Committee concluded ‘the processes for investigating and learning from incidents are complicated, take far too long and are preoccupied with blame or avoiding financial liability’.

Parliament recommended an independent Healthcare safety investigation Bureau. The Bureau was set up but without the independence that was needed. The Public Administration and Constitutional Affairs Committee stated

“We remain deeply concerned that HSIB has been established without the necessary primary legislation to assure the independence of the new body and create a statutory ‘safe space’ and that it has been established inside an existing NHS regulator rather than as an independent body. The government must take seriously the need to provide HSIB with a legislative base that will enable it to carry out its functions to full effect, and to establish it as an independent body. The government should bring forward appropriate primary legislation without delay.”

Turning back to Sweden, its complaints process is separate from the system that compensates patients for injuries but it is not completely independent. Some studies showed that less than one-third of the complainants were satisfied after handling and with healthcare providers’ statements about the complaint. The most frequent causes for dissatisfaction were that the healthcare provider ‘did not tell the truth’ or ‘gave insufficient information’.

Sound familiar?

I read Lord Justice Jackson’s Lecture note from 28^th January hoping to find the voice of an independent judiciary dispassionately appraising the case for and against fixed costs and making recommendations.

I was however disappointed. Not just because I disagree with him, but also because he has not employed the measured reasoning and discipline of thought we expect from members of our Judiciary.

Why does he favour fixed costs?

His view is that :-

• High litigation costs are a problem
• If costs prevent access to justice this undermines the rule of law
• Hourly rate renumeration rewards inefficiency
• Fast track costs in personal injury/IP Enterprise court appears to be working
• Litigants in non PI need access to justice at proportionate cost
• The profession is willing to accept fixed costs rather than have more costs budgeting
• Politicians and Judges want it
• It provides certainty
• We have enough experience from costs budgeting and fixed costs now

Why was I disappointed?

He showed no interest in the impact of the 2013 changes he brought in

No mention was made of the need to review the success or otherwise of the numerous mechanisms by which multi track or non PI costs have been sought to be controlled since 1^st April 2013:

We had costs budgeting, changes to the overriding objective to prevent disproportionate cost, encouragement to mediate , changes to part 36 , recoverability of success fees, ATE premiums and assessment of costs (to name but a few).

All of these changes aimed to  prevent disproportionate costs and to make justice more efficient.

Unfortunately, lack of resources and planning when they were introduced meant some of the changes had the reverse effect. This was not the fault of the procedural judges but of poor planning and the failure to put proper resources in place .

As a result there was additional delay and expense – for example, it was not uncommon for litigation to be brought to a halt whilst parties waited 6-9 months for a date for a costs budgeting hearing.

Simularly, some poor planning meant that when costs budgeting was implemented the forms did not initially work and the rules were not clear.

For a man whose report was so instrumental in starting ‘the big bang’ of reform which started in April 2013 he seems remarkably disinterested in how his recommendations have bedded in.

He did not look at the root cause of High litigation costs

He seems for example to ignore the role of government in ensuring that court fees have gone up extortionately since 2013. He makes no mention that those changes alone put justice far beyond the reach of the average member of the public where they have to bear that burden.

For example , the issue fee for a grievously injured child who needs proceedings to be issued used to be £1200 . Now , for that same case the cost is £10,000.

He did not look at whether the current regime might be capable of working

The regime he ushered in has been condemned without analysis.

The raft of measures introduced in 2013 gave the courts power to regulate and control court costs. There is in fact plenty of evidence of the courts exercising their muscle to reduce costs to a proportionate level. in some cases disallowing costs completely.

As high value cases can take 2 -3 years to resolve the effect of costs budgeting on these cases cannot be properly assessed because they have not been in place for long enough for their effect to be seen.

Perhaps better resourcing of the courts would allow for better costs management? Has anyone considered that more Judges and better infrastructure in the court system to allow administration of costs management might be a more effective way of achieving the aim of justice at proportionate cost? Shouldn’t they?

Significantly the regime that Lord Jackson compares us to in New Zealand allocates twice as much to the court infrastructure than we do in the UK (SEE OECD (2013), “What makes civil justice effective?”, OECD Economics Department Policy Notes, No. 18 June 2013.)

No consideration is given to the conduct of the parties in driving up the costs of litigation and the effect of better costs management systems might have on such behaviours.

Most significantly he does not consider whether fixed costs provide more effective access to justice than the current system

There is considerable value in a CFA allowing an individual access to justice.

Legal aid for high value personal injury and Clinical negligence has all but disappeared. CFA’s were the replacement.

For all their faults CFA’s allow the lawyer and their client to tailor what is necessary to be done in order to investigate and litigate a case. This is then assessed by the court who only allow recoverability of what they regard as proportionate and necessary to do justice in the case.

To ensure they are reasonable litigation costs are made subject to pre-emptive costs budgeting, proportionality and assessment as to what was reasonably incurred at the conclusion of the case.

The current system also to a large extent has in built protection that prevents one party from acting unreasonably. Unreasonable conduct by one party should surely in some circumstances justify the costs of the other party to defeat such conduct (see CPR 44.2 (4) a).

Penalising unreasonableness is part of being just in the minds of most people. To embrace a system which rewards unreasonableness will undermine the rule of law.

Does a fixed costs regime work? Can one size really fit all?

Lord Jackson proposes fixed costs should be extended to all areas of litigation because they have worked for lower value Personal injury and in the IP Enterprise court.

This assumes that a fixed costs regime is suitable for all areas of law, values and types of claim. It is unquestionable however that different areas of law have different demands evidentially.

Different types of Claimant and Defendants also need different support from the legal framework if justice is to be done.

The problem with fixed costs is that they treat all cases as if they were the same. Case however are not the same. Some cases are considerably more complicated than others. Complexity does not necessarily run with value. Where it is not possible to complete litigation within the fixed limit of recoverability either someone has to fund the shortfall or the case must be given up.

Where such a situation occurs, a multinational company is better equipped to fund a shortfall in a fixed fee justice system than a widow on benefits. Are we to treat them both the same?

Should there not be some consideration of the question of whether Justice will still be achieved?

Fixed costs bolster the inequality in arms between Claimant and Defendant that already exists between individual citizens and large organisations. Defendants will be able to prevaricate and act unreasonably knowing that they are using up the fixed costs entitlement of the Claimant and thereby pushing it into the iniquitous zone of lawyer only or client only costs.

Imagine for example explaining to the parents of a baby killed by suspected negligence that ‘we have reached the fixed costs limit but the investigation is incomplete because it is complicated. Your case gets only low recoverable fixed costs because it isn’t worth much  so now you will have to pay.’  Would you consider that justice in action?

Overview

We know that Judges would rather not be troubled by the issue of assessing costs or costs budgeting under the current regime. Lawyers too do not enjoy them. Explaining how the CFA regime works can be difficult. Simpler systems undoubtedly exist.

These however are not arguments for fixed costs to be introduced.

Capital punishment has virtues of being definite, cost effective and easy to explain but we have decided that ultimately it does not fit with our definition of Criminal Justice or our values.

The primary concern in Civil Litigation should be to do justice in a system where unreasonable costs can be controlled. In Clinical Negligence there is a strong public interest in maintaining high standards of care and accountability which has been achieved through the availability of damages in the civil courts.

Fixed costs imposes cheap and cheerful ‘poundland justice’ and strangle justice by paying no heed to either the issues, complexity nor the conduct of the parties.

It is difficult to see how the hard and fast nature of fixed costs help justice to be achieved in Civil Litigation. The same costs will be allowed irrespective of the complexity of the case or the conduct of the parties. It is like setting the meter on a taxi journey before knowing how far you are going to go or how difficult the journey will be.

The National Health Service (NHS) was created out of the ideal that a good standard of healthcare should be freely available to all, regardless of wealth. When the then Minister of Health, Aneurin Bevan launched the NHS it was based on three core principles:

• That it meet the needs of everyone
• That it be free at the point of delivery
• That it be based on clinical need, not ability to pay

But, if something was to go wrong with medical treatment received from the NHS, is it ethical to sue?

Some will argue that suing the NHS is wrong both morally and financially. After all, medical staff are only human and everyone makes mistakes at one time or another. But on the other hand, if a person is treated negligently affecting their quality of life and rendering them unable to work, should they not receive support from those that caused the injury?

It is important to remember that the National Health Service do not pay compensation unless negligence can be proved meaning that a medical professional body would have acted in a way that other members of their profession would condemn as below the acceptable level of competence and that such actions directly lead to injury or damage of the complainant as a result.

In reality, the people who sue the NHS just want their lives to return to the way it was prior to the negligence. Of course, if successful they will receive a financial award but the award given will not put the complainant in any better position than before the negligent treatment. In practice, the complainant will not benefit financially from what has happened to them. In most cases people just don’t want what they have experienced happening to others.

A civil claim can often be the only way to find out what really happened and instigate change for the better. The NHS often does not investigate when things go wrong so future improvements are often made thanks to patients that sue. We often get Letters of Apology explaining how improvements will be made in future, but generally only after litigation.

I am of the opinion that if a professional medical body treats a patient negligently meaning that they can no longer look after themselves or loved ones, they should be entitled to sue the organisation at fault for compensation.