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Access to justice for personal injury cases and how to be prepared

21/04/2017

Our team of personal injury lawyers has welcomed news that the Government has dropped plans to introduce a mandatory system of fixed costs for lower value clinical negligence cases.

FBCMB | Lucy Macklin Smith - Clinical Negligence

David Lidington, Leader of the House of Commons, announced that the Prisons and Courts Bill, which included the proposals, has been abandoned in the wake of the Prime Minister’s decision to call a General Election in June. 

Lucy Macklin Smith, a Senior Solicitor in our Clinical Negligence and Serious Injury team, explains why it would have seriously affected access to justice, particularly for elderly claimants:

The introduction of fixed costs in clinical negligence cases for claims up to £25,000 would have created a massive barrier in obtaining legal representation, particularly for the elderly who make up a large proportion of cases affected.

These are often complicated cases involving a lot of time and expert advice but the majority of cases (60% of damages claims settled against the NHS in 2015/16 for example) would have fallen into this category.

If an elderly relative has been injured or died as a result of negligent treatment, the value of the claim is often reduced to a short period of pain and suffering. Consequently awards of compensation would be likely to be lower than £25,000 – and often a lot less – bringing people into this bracket of cases where fees would have been fixed.

Irrespective of the value of a claim, proving a clinical negligence claim requires the support of experts, which can be expensive. Elderly clients are also particularly vulnerable and require a great deal of support through what can be a complicated and distressing time for them. 

While the courts focus on proportionality and the costs to compensation ratio, a fixed cost regime could have resulted in people not being able to find a solicitor to support them to seek justice.

We hope that the Government has taken note of the concerns raised about these proposals and doesn’t seek to reinstate plans for fixed fees if it is re-elected on June 8.

Michelle Monnes Thomas, an Associate in our Wills, Probate and Lifetime Planning team, has this advice on the advance planning you can do in case of a personal injury case:

We have dealt with cases of elderly clients who are negligently injured in hospital or care homes, who die from unrelated issues before their personal injury claim can be settled. This can result in the value of a claim being reduced. 

In some cases, if the correct papers aren’t in place, it can delay and sometimes prevent cases from proceeding further. 

There are some simple steps you can take to ensure in case of a future personal injury claim:

Make a will:
It is always important to confirm how you want your estate to be distributed when you die but having a valid will in place enables your executors to continue a personal injury claim after your death. It would also ensure that any compensation is paid to the beneficiaries you have chosen and not to the family members who might receive it if you died without leaving a will. 

Have a Lasting Power of Attorney:
If you’re elderly and pursuing a personal injury claim, you may become incapacitated and unable to deal with your own affairs during the process. If you already have a Lasting Power of Attorney in place, the person you have nominated would be able to pursue the claim on your behalf.   

Consult our Community Care team:
Our dedicated Community Care team can advise elderly clients on wills and LPAs but also provide advice on discharge from hospital and also their rights and responsibilities while in care. This can enable clients to choose the right care services and potentially minimise the risk of claims happening if the right care plan and setting is chosen to accommodate a person’s needs.

At FBC Manby Bowdler we are committed to helping people find access to justice and welcome enquiries from those looking to take action in personal injury and clinical negligence cases. 

* For advice on Clinical Negligence and personal injury claims, contact Lucy Macklin Smith on 01902 393474 or l.macklin-smith@fbcmb.co.uk.

To discuss Wills, Probate or Lifetime Planning, get in touch with Michelle on 01902 392484 or m.monnesthomas@fbcmb.co.uk.


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