Judge labels clin neg fixed costs ‘profoundly worrying’

Topics: Civil justice,Costs, fees and funding,Personal injury & clinical negligence

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  • Master David Cook

Outspoken Queen’s Bench judge Master Cook has slammed government plans to push ahead with fixed costs in clinical negligence cases worth up to £250,000.

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The master said change ‘should not be driven on the basis of out-of-date statistics and the short-term financial interest of the NHS’, despite the ‘perhaps irresistible momentum’ towards fixed costs in civil claims.

Cook (pictured), who was giving his personal views at a seminar hosted by 7 Bedford Row, said it was ‘profoundly worrying’ that government still planned to bring in fixed costs for clinical negligence this October – even though the full public consultation initially envisaged by the Department of Health had yet to materialise.

Cook added: ‘What I find particularly concerning is how the [NHS Litigation Authority's] concern over disproportionate costs in “lower-value claims” - that is, claims valued up to £25,000 - has morphed into a proposal to fix costs in cases up to £250,000.’

Criticising assertions in the authority's 2015 annual report that lower-value claims are causing disproportionate costs to the health service, the judge said: ‘There is a respectable case to be made that the NHSLA has presented the statistics in a less than neutral fashion.’

The judge pointed to a raft of behaviours by hospital trusts and the NHS’s litigation arm that drive up costs, including failure to disclose documents or respond properly to claimants, failure to admit liability early on, and ‘needless opposition’ to making payments on account of costs, or to embracing split trials.

Cook also noted that NHS figures used to influence the drive towards fixed costs pre-date the costs management reforms.

The judge said that despite the initial difficulties caused by budgeting in clinical negligence cases, there were signs that the process was now ‘beginning to work’, with a ‘significant increase’ in the number of cases where budgeting is agreed, at least for a number of the budget phases.

The temporary stay on budgeting for clinical negligence cases in London, introduced last October, will cease at the end of this month, and one new full-time master and four further deputy masters have been appointed to cope with the increased workload.

Turning to Lord Justice Jackson’s recent proposals for a major expansion of fixed costs across civil litigation, Cook said he could not accept that the proposed £250,000 threshold represented low-value claims. Rather, they were potentially ‘life-changing sums’ and could ‘encompass such events as the death of a child’.

Cook said he believed fixed costs should not be extended beyond claims worth £50,000 without first engaging in ‘proper scrutiny’ of the effects.

On Jackson’s fees ‘grid’, he added that the pre-action allowances were not enough for the work involved in the clinical negligence field.

Cook also highlighted some ‘unwelcome signs’ in the clinical negligence arena, with a rise in the number of litigants in person seeking to bring their own claims because they cannot find a lawyer to take them on. 

The judge said there were also more ‘non-specialist firms’ moving into clinical negligence, lacking the necessary understanding or experience.

He added: ‘This causes very real difficulty and extra cost for the defendant firms that have to deal with them, and impacts on court resources… The irony is that under the legal aid system the quality of solicitors undertaking clinical negligence work was assured by the requirement of panel membership.’

An NHS Litigation Authority spokesperson said: ‘We would agree entirely with Master Cook with respect to his comments on the entry of non-specialists into the clinical negligence market and the difficulties this creates in the resolution of claims. It is important that injured patients obtain access to justice at reasonable cost and that excessive costs are challenged appropriately in order to preserve NHS resources for patient care. This is why we have drawn attention to clear evidence of disproportionate costs being claimed, particularly on lower value cases.’

 

Readers' comments (11)

  • At long last, a member of the judiciary who recognises the stupidity of these proposals and is prepared to say so. I wish there were more like him.

    A clin neg lawyer.

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  • At last. Sensible comments from someone who has actual hands on experience of what goes on in the real world of clinical negligence litigation and in particular the costs involved in running these claims.

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  • How is it that there is no such concern about fixed costs in Employer's liability cases or even RTA's? There are complex matters arising in all areas of PI and to pretend that clin neg cases are somehow special in terms of complexity is not realistic.
    Fixed costs deter access to justice and favour the defendant and their insurers who play the system by 'spending out' the claimant solicitor with obstructive behaviour and unnecessary point taking.

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  • Well done for a clear voice of sanity!

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  • Is there any scope for a system, on a trial basis at least, of no-fault liability? How much of these costs are going on 'liability' and how much on 'quantum'? Even if an argument on liability is successfully defended, often the state has to 'compensate' the victim in the sense of providing for him via state benefits which would otherwise not have been paid. The argument in such cases then seems to me to be which arm of the state, the NHS or DWP, is going to look after and compensate this victim. What is the point of that?

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  • Master Cook is to be congratulated for speaking such sense. Many cases will fall foul of the £250,000 limit, not just child deaths, but also the elderly, disabled, non-earners and those without dependents.

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  • And what do you do when an offer at £249,999.99 comes in on a case you genuinely believe to be worth, say, £275,000-300,000? Well, perhaps that question should have read,. 'what does your client decide to do when...?'

    I can see this leading to a load of PII claims coming in for 'under -settling'. We all know how extremely grateful clients can be when you hand them a cheque for £249,999.99, but after a few pints down the local, a quick read of The Sun Law Reports and a chat with a member of your opposition and he's sending you a letter instructing you to pass his papers to your most loathsome competitor and asking who your insurers are and what is your policy number...

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  • David, you give the best advice you can. If the claim is worth £275k to £300k then that is what you advise. In advising you advise of the consequences of accepting an offer at £249,999. If that means client pays some costs and ends up with less then so be it, they have the correct advice in order to make an informed decision.

    Too often I see situations where people are scared of exercising their judgment and advising as they see fit. Our job is to advise. If a client doesn't accept that advice then provided they know what they consequences are that's tough.

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  • Thanks for that, Anon 11.50 and I entirely agree. Once you have told the client all that you know, and the consequences of an acceptance or a rejection, you've done your job. But who can say a case is definitely worth more than £250,000 until it is worth well over £300,000, when the client has been offered £249,999.99?

    And a lot of firms are under a good deal of financial pressure. What if their PPI premium is up for renewal next month? These things don't come along in a vacuum, there is always a context and pressures, usually financial, like gravity have a role too.

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  • David, no fault liability will always go in the same direction as any other 'no fault' system. The compensation will be whittled away by governments simply because it will be seen as a state handout.

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