Fixed ideas

Just before my summer break (now rapidly receding into the past) I published an article in Litigation Funding magazine on fixed costs in NIHL claims.

A copy of the article, can now be downloaded in PDF format here: Fixed Ideas.

Of course, in the last two months the concept of fixed costs in clinical negligence claims worth up to £250,000 has been floated by the government.

One suspects that the figure of £250,000 has been chosen, so that when a compromise is reached at a lower figure (say £100,000) it reflects the government’s intended figure all along.

That fixed costs for clinical negligence cases will happen I have little doubt.

The real debate is how to structure such costs, with the very heavy expenditure on experts and counsel that such cases, have at least to date, carried.

Some commentators have speculated that this could herald the start of a move to fixed costs across the board, irrespective of whether the case is a clinical negligence or personal injury case.

I rather doubt that happening.

Such reforms are not drawn up in a vacuum to maximise utility or even to create a pleasing symmetry and economy in the rules, but rather reflect intensive lobbying by particular interest groups: the insurance industry, the NHSLA, which is absent in the general context of civil litigation.

It takes a great deal of effort to shift the Overton window.

This is demonstrated by the fact, that more than 16 years after the introduction of the Fast Track, costs in general civil litigation seem incapable of being fixed by the rules, nor is there any discernible pressure by lobby groups that they should be.


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