Sorry seems to be the hardest (and most expensive) word to say - part one

Posted on: 29 October 2019 (updated on 05 November)

In our two-part blog, Sian Stanton, Business Developer, discusses the latest Civil Justice Council (CJC) working group report and implications of Fixed Recoverable Costs (FRC) for clinical negligence claimants.

One of the first lessons we teach children is that when you do something wrong you have to say sorry. Perhaps inevitably, as we get older and the mistakes and their consequences get larger, the apologies become more difficult but also more meaningful. Nowhere more is this the case than in clinical negligence disputes.

The latest CJC working group report seems to both acknowledge that and also find it difficult to formally enshrine in the new FRC scheme. Many of the non-cost related parts of the process require a radical shift in the way resolution is achieved for victims of clinical negligence. The report states that, whilst an apology from the Defendant Trust might be seen as good practice, they also ’question whether the formal pre-action process can go further than recommending that the Defendant consider an apology‘.1 The CJC appears to have little problem in introducing procedural steps which favour defendants by adding in safeguards to appease Claimant solicitors, but the injured person still isn’t being placed at the heart of the process.

If there’s an admission of liability made then logic dictates that that’s been based on the facts of the negligent act(s) and so providing an apology seems to be an integral part of making Claimants whole again. In my experience, the provision of apologies seems to be patchy and inconsistent. Until the culture changes at the front line of the NHS through learning and patient safety recommendations, I find it difficult to see how the concomitant claims handling will change.

Apology or no apology, many of the CJC proposals seek to increase the value of disbursements required to pursue claims with no viable answer as to who’s expected to pick up these costs. Asking Claimants to sacrifice more and more of their damages – an amount intended to compensate them for suffering a negligent act – doesn’t seem like a just or equitable position. 

As our Claims Manager, James Barclay, eloquently puts it;

“It isn’t surprising that, with solicitors coming under increasing pressure
regarding their own costs and margins getting squeezed, firms are looking at different ways of working. Indeed we would encourage innovative thinking. However, an unwelcome side effect of some of this innovation and/or change in behaviour seems to be an increase in our average ATE claims cost.

For example, something we’ve seen in our clinical negligence book is an increase in the frequency of pagination costs being claimed. Therefore, it’s clear that more solicitors are now outsourcing this activity when they might have done it in-house previously. Obviously there’s nothing wrong with that change, but it’s factors like this that we, as insurers, need to be aware of and, unfortunately, ATE premiums will need to increase.”

 

 

[1] https://www.judiciary.uk/wp-content/uploads/2019/10/Fixed-recoverable-costs-in-lower-value-clinical-negligence-claims-report-141019.pdf

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Sian Stanton

Business Developer