Access to justice for the elderly: How do we maintain it?


Kelsi Harrison, Costs Consultant at PIC, reports.

Action against Medical Accidents (AvMA) has justifiably expressed serious concerns that the introduction of fixed costs in clinical negligence cases will create a massive barrier for the elderly in obtaining legal representation.

Law firms are already hesitant in dealing with claims of this nature due to the modest value as the new proportionality rule means it is difficult to justify spending more than the value of the claim. The vast majority of such claims will fall below the £25,000 mark, yet these cases regularly require multiple disciplines of experts to be instructed and a high level of interaction with the client due to their vulnerability. It is certain that when fixed costs are introduced, almost all claims by the elderly will fall within this bracket.

As it stands, many law firms rarely recover a reasonable proportion of their costs in such claims due to the new proportionality rule as the amount of costs recoverable will be reduced based on the damages involved. These already narrow margins will be shortened further, making it extremely difficult for elderly Claimants to obtain legal representation.

Announcements have been made in the past month which indicate an acknowledgment that a more collaborative approach is required by the NHSLA (now NHS Resolution). However, this is lacking on detail as to how the change of focus will be achieved and it will take more than a name change to alter such entrenched habits. Furthermore, the duty of candour is still yet to be adopted wholeheartedly. It is therefore hoped that when considering the reforms, the Government will take into account the avenues that will be closed for the most vulnerable Claimants.

Kelsi Harrison is a Costs Consultant at PIC.

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