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From 9 March 2015, the government implemented increased court fees for civil cases. The changes that have been put into place will mainly affect claims valued at £10,000 or more. The new issue fee for cases valued over £10,000 is now five per cent of the value of the claim and capped at a maximum fee of £10,000.

This move has been widely criticised by many working in the legal profession. The Law Society is of the opinion that this will have a “huge significance to access to justice.” One of the areas of law where these changes are most likely to have a negative impact is clinical negligence; cases are likely to be affected by this increase as, because of the complex and serious nature of these claims, they are often valued at well over £10,000.

Impact of increased court fees on law firms

The impact this will have on clinical negligence claimants will depend upon their funding arrangement. It is worth remembering that clinical negligence claimants have already been affected greatly by changes made to Legal Aid in April 2013, which means that it is now only available in limited circumstances for clinical negligence claims.

In many claims, solicitors’ firms will be responsible for paying the court issue fee. The impact of paying the increased fee will affect both small and larger firms. The greater the number of high-value cases attracting significant issue fees, the greater the financial effect on the firm. This is a significant outlay that will greatly affect smaller firms’ cashflow and may even result in insolvency or bankruptcy. In respect of larger firms, the Law Society points out that these will have hundreds of thousands of pounds tied up with the court, which cannot be allocated to other business purposes. This will by extension have a detrimental effect on clinical negligence claimants, as firms are likely to be more cautious when taking on cases given the potential issue fee attached to them. Firms are likely to reject riskier cases, particularly where ATE cannot be obtained. Claimants who may have previously been in a position to privately fund their case are now likely to be reluctant – or unable – to go to court, despite having potentially successful claims.

Impact of the changes on claimants

The changes will also have a serious effect on claimants who are likely to be vulnerable already because of an injury caused by no fault of their own. The Law Society highlighted a case study in which a claimant had suffered a brain injury as a result of a failure to diagnose meningitis as a child. It involved a claim for care for the rest of the claimant’s life, along with a claim for suitable changes to the claimant’s accommodation. Such claims may be valued at £200,000 and therefore attract an issue fee of £10,000. Under the previous fee structure, the issue fee would have been £1,515. It seems an injustice that a claimant in this situation would be unable to progress with their claim because they did not have legal expenses insurance, would be unable to fund the fee themselves or find a firm willing to take on the case and pay the issue fee.

Defendant tactics

The increase in fees may be advantageous to clinical negligence defendants from a tactical perspective. Given the high-value nature of the claims, defendants may be more likely to deny liability and make no admissions, hoping that the claimant will be unable to pay the issue fee and take the case further. This could result in clinical negligence claimants being able to take their claims up to the stage of issuing and then discovering the case could not be taken any further. The high cost of the issue fees also make a claim vulnerable to issues of cost proportionality.

Knock-on effect of increased court fees on clinical negligence claimants

The increase in issue fees will have a significant financial effect on firms specialising in clinical negligence claims and this in turn will have a great effect on clinical negligence claimants themselves. Given that there has been a nearly 600 per cent increase in issue fees, it is unsurprising that it is likely to have a detrimental effect. The move has been widely criticised as unfair, a hindrance to accessing justice and affecting an already vulnerable group of people.

For more information on increased court fees, any of the other issues raised in this article, or for information on clinical negligence matters in general, contact Clinical Negligence partner Joanna Laidlaw by emailing [email protected].