Agreeing budgets in clinical negligence is rarer than a sighting of Bigfoot.
Earlier this month, Master Cook of the Queen’s Bench Division made a stark assessment of the problems created by budgeting in the clinical negligence field.
Budget hearings are clogging up the courts and slathering a thick layer of needless extra cost onto cases, much to the frustration of judges, lawyers and parties.
A hearing on budgets is needed is virtually every clinical negligence case in the QBD, with some lasting up to two hours.
The courts are already under strain from a rise in clinical negligence claims, with more medical mistakes now ending in legal action. This has in part been fuelled by the number of personal injury lawyers who are seeking to escape some of their LASPO woes by turning to clin neg work – which is not as easy a move as it might seem, but that is for another day.
Combined with this expanding caseload, budgeting is now pushing the courts to the brink in clinical negligence. The annoying thing is that this outcome was predictable – budgeting was never going to work in clin neg.
The only time that budgeting works well is where parties are prepared to agree budgets between themselves. When budgets are agreed, the courts do not get involved – and indeed the judge is not allowed to meddle with an agreed budget. Where you are dealing with, for example, a commercial dispute, there is a chance that the parties will indeed agree their budgets, and avoid the time and expense of a budget hearing.
But if anyone ever thought that budgets were going to be ‘agreed’ in clinical negligence claims, then they must have been living on another planet.
I’ve written before about some of the tactical budgeting that is complained of on both sides of the fence in PI. Defendants - who under qualified one-way costs shifting are unlikely to receive their costs - are criticised for pitching their own budgets too low, in a bid to get their opponent’s figures reduced.
From the defendant’s perspective, agreeing a claimant’s budget would mean missing an opportunity to get their opponent’s spending wings clipped; and the NHS Litigation Authority is not known for its accommodating attitude in legal claims against it.
Claimants, on the other hand, are scorned for piling everything but the kitchen sink into their budgets, which defendants regard as inflated.
This is an extremely polarised sector, and agreed budgets were always going to be about as common as a sighting of Bigfoot.
Could either side be persuaded to change its ways? The problem is that once a culture has developed, it becomes extremely hard to turn it around. It would require a level of trust that simply isn’t there.
All this is made worse by the fact that, when budget hearings do take place, there has not been enough guidance on how the process should work – as Master Cook pointed out, the difficulties are more than just ‘bedding in’, and there is a ‘regrettable’ - though unsurprising - lack of guidance on the topic from the higher courts.
On the topic of guidance, though, it is worth flagging up last month’s High Court judgment in Yeo v Times Newspapers Ltd, which is certainly worth a read. Mr Justice Warby delves deep into the topic of budgets and gives some useful guidance on how long should be spent on budgeting; whether the courts should consider hourly rates; and the use of contingencies.
Needless to say, we will be looking closely at that judgment in next month’s edition of Litigation Funding.
Rachel Rothwell is the editor of Litigation Funding magazine and a former Gazette news editor