Ministers forge ahead with October date for fixed clin neg fees

Topics: Costs, fees and funding

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Health ministers intend to introduce fixed fees for clinical negligence cases by 1 October – despite not yet releasing a promised consultation on the issue.

Responding to a written parliamentary question, health minister Ben Gummer (pictured) confirmed the intended start date for fixed recoverable costs for claims, following the outcome of the public consultation.

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The consultation will include consideration on the maximum value of claims that would be covered by the new regime and whether there should be any exemptions.

With the consultation likely to last at least six weeks, the starting date leaves ministers with a tight schedule to make changes.

In response to a separate question, Gummer said respondents to a pre-consultation exercise in August confirmed ‘no exact correlation’ between the value and complexity of clinical negligence claims.

The consultation, he said, will look at how behaviours can change to streamline and speed up the way in which clinical negligence claims can be processed. Gummer insisted the new regime will focus on the conduct of both claimants and defendants for a process that is ‘more resource-efficient and that incentivises the right behaviours by all parties’.

He added: ‘One objective of the proposed fixed recoverable cost regime is to improve the relationship between recoverable costs and damages paid, he said.

‘Looking at cases settled post Legal Aid, Sentencing and Punishment of Offenders Act 2012 we have not noticed a significant impact on this relationship.’

Meanwhile, the Medical Defence Union, which defends doctors against clinical negligence claims, has insisted that GPs are not to blame for increasing numbers and costs of claims against them.

In written evidence about indemnity for the parliamentary health committee inquiry into primary care, the MDU admitted claims had risen by 20% following the introduction of LASPO.

Dr Michael Devlin, head of professional standards and liaison at the MDU, said the rise is a result of factors beyond GPs’ control.

‘The main reason is the legal changes to “no win no fee” arrangements which led to a surge in cases,’ he said.

‘Other factors include the worsening economic climate and a general environment that promotes litigation over resolving concerns through alternative routes.’

Devlin said the proof that more unmeritorious claims were being lodged was that the number of claims defended without settlement rose from 70% to 80% in 2015.

The MDU’s highest payment on behalf of a GP was £7.5m following missed diagnosis of a subarachnoid haemorrhage and in another case £6.5m (plus £300,000 costs) was paid for missed diagnosis of meningitis in a six-month-old infant.

Readers' comments (13)

  • Beyond farce.

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  • Please can someone do a freedom of information request regarding the level of costs paid in clinical negligence claims arising from incidents after 1 April 2013 (so entirely under the post Jackson proportionality, costs budgeting and irrecoverable success fees and reduced scope of ATE insurance premiums) compared to claims of similar value damages, conduct period and liability stance to take a look at whether or not the costs per claim has increased post Jackson (clue it has dramatically increased despite deliberate misinformation disseminated by NHSLA).

    This needs to be considered as well as the number of claims when considering if costs overall are increasing or not.

    There is little point looking at what costs were paid this this year as it will be dominated by pre Jackson era cases as the cases resulting in the highest costs take several years to settle and then the costs have to be agreed.

    Also, when MDU says there has been a surge of claims post LASPO due to a change in now win fees surely this is wrong as it seems counter intuitive. Presumably there was a surge of claims with CFAs signed up to pre 1 April 2013 but the claims and costs are being dealt with now?


    On another tangent the £7.5M damages payment is the massive issue here.Should a brain injury child (the usual big NHS claim) get £XXM damages to care for them but a child who with a similar injury who was just unlucky have to make do with local authority care package. In cash terms the damages in birth injury claims are what needs tackling perhaps by spending more cash on maternity wards but this investment has to come first to see a reduction in the damages paid out.

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  • "On another tangent the £7.5M damages payment is the massive issue here.Should a brain injury child (the usual big NHS claim) get £XXM damages to care for them but a child who with a similar injury who was just unlucky have to make do with local authority care package."

    Yes. In exactly the same way, a person whose car is written off by somebody else's negligence should have their car replaced by that person, whereas the person whose car was written off by the fault of no person should have to make do without. These are very basic, very ancient principles.

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  • 'Devlin said the proof that more unmeritorious claims were being lodged was that the number of claims defended without settlement rose from 70% to 80% in 2015.'

    This statement bares the possibly of a huge massaging of the truth which I believe needs to be scrutinised. Where we have been given no supporting evidence whatsoever or have been made privy to any of the reasonings 'behind' why it was that those claims which were unsuccessful,failed.

    There are a multitude of reasons why this could have been the outcome, for one in this current climate, a large number of Litigants in Persons who have found themselves ill prepared and or ill-knowledged and or unqualified enough to tackle such gauntlets alone. Yet alone a lack of available financial resources to then see such matters through to the bitter end.

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  • whoops - massive typo by me at 5.06pm above! I intended to say costs have massively DECREASED post Jackson not increased

    Please can someone do a freedom of information request regarding the level of costs paid in clinical negligence claims arising from incidents after 1 April 2013 (so entirely under the post Jackson proportionality, costs budgeting and irrecoverable success fees and reduced scope of ATE insurance premiums) compared to claims of similar value damages, conduct period and liability stance to take a look at whether or not the costs per claim has increased post Jackson (clue it has dramatically DECREASED despite deliberate misinformation disseminated by NHSLA).

    This needs to be considered as well as the number of claims when considering if costs overall are increasing or not.

    There is little point looking at what costs were paid this this year as it will be dominated by pre Jackson era cases as the cases resulting in the highest costs take several years to settle and then the costs have to be agreed.


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  • Quote ‘Looking at cases settled post Legal Aid, Sentencing and Punishment of Offenders Act 2012 we have not noticed a significant impact on this relationship.’

    Most clin neg sols on CFAs used to get 80% success fees if they entered into the CFA early enough and large premiums - either staged or RSA Pursuit premiums charged at 90% of the opponents costs and own disbursements. The no longer recoverable success fees and ATE policies therefore accounted for roughly 50% of costs pre LASPO.

    Why therefore have post LASPO costs not dropped by 50%?

    Hourly rates have not increased since 2010 so that is not the reason. The additional hurdles of costs budgeting and stricter proportionality test now apply so no change there. The courts even recently decided it wasn't reasonable for a London based solicitor to charge London rates on a provincial clin neg case (the Wraith rule has been ignored in the SCCO for a long time previously)

    So the question is how have costs without success fees and ATE policies doubled to keep costs at the same level they were pre LASPO?

    It seems strange to me. Almost like it isn't true... but it must be as surely the gov and those who pay the clin neg costs would not try to mislead anyone.

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  • The recommendation will not be too bad then the government will arbitrarily reduce it. Roll a dice, 1 to 5 deduct 50% from the recommendation. Roll a 6 and make anything under £10k small claims track and still deduct 50% from the recommendation.

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  • Perhaps the NHS should hire some decent doctors, surgeons and there would not be a surge in medical negligence claims...... just a thought

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  • See litigation futures
    "Led by Professor Paul Fenn at Nottingham Business School, researchers found that the number of clinical negligence claims in 2013 was “not very different from the level of claiming in 2001.
    This was explained by a steady fall in claims between 2001 and 2009, followed by a rise, with the number of new claims “approximately doubling” between 2009 and 2013. The study did not cover the post-LASPO period."

    So the massive changes that have occurred and the potential effect on claim numbers and level of costs paid has not been given any consideration. Government does not care though. They are pushing reforms through before the results can be seem with zero consultation planned on whether there should be fixed costs and no consultation period yet published on the scope or level of fixed costs.

    The article mentions a £25K damages limit for fixed costs. The only limits I have seen mooted from all other sources say £100k - £250K.


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  • I was hoping that the £25,000 referred to in the article was not a typo that ought to have read £250,000. The former is workable and sensible with proper controls , the latter far from it!

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