John Hyde of the Gazette makes valuable points. Addressing the NHS legal spend should not be done at the expense of genuine Claimants who may be unable to find lawyers willing to act under a fixed fee regime; or more likely will have to suffer a potential reduction to their compensation to pay lawyers further fees to supplement the fixed fee recoverable from the opponent.
One of the cornerstones of the centuries old costs shifting regime is to regulate litigation behaviour. Coupled with the updated Part 36 regime, parties have the means to protect themselves on costs. A fixed fee regime can stifle and disincentivise sensible litigation practice.
Absent a fixed fee regime, the NHS and other paying parties are not left without redress. Anecdotal evidence continues to emerge regarding the improving costs budgeting and management regime. Then there is always the tried and tested detailed assessment process, and the good sense of the Costs Bench.
We’re all paying for the supposed excesses of lawyers charging way more than the damages they’re fighting for. The figures involved are eye-watering and it goes without saying that we all benefit when legal costs are reduced.