A National Audit Office (NAO) study has concluded that the cost of clinical negligence claims is too high and recommends the government should:

  • Identify the balance between access to justice and access to health services, and what is a proportionate response to harm;
  • Address all factors it can influence, including the number of claims, legal costs and damages awarded; and
  • Determine how its ambitions will be met.

Injury claims generally have been subject to repeated reforms since 1995. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and changes to the Civil Procedure Rules have had an enormous effect on many law firms and their clients.

Claimants almost always have very limited resources available to fight their case. This means they rely heavily on ‘no win, no fee’ agreements, after-the-event legal expenses insurance policies and a considerable amount of goodwill from (and pro bono work by) their solicitors.

Victims of clinical negligence usually require (often expensive) expert evidence to support their case against medical institutions and practitioners. The burden of establishing liability and causation (unless admitted) is, of course, theirs.

The NAO’s report says: ‘Many clinical negligence cases are complex, and establishing causality and the amount of damages involves uncertainties. Negotiating an outcome for these cases can be time-consuming.’ This is why trying to arbitrarily fix the amount of costs and thus how much legal support an injured patient can receive is such difficult territory.

While clinical negligence claims may impact on an already under-resourced NHS, my interpretation of the NAO report is that claimant solicitors’ costs are already falling, particularly in proportion to the amount of damages recovered. Other factors may be having a significant impact on overall costs. These include the 2015 increase in court fees; the variation of the discount rate used to calculate the level of damages; and even NHS Resolution managing the pace of settling claims to remain within its cash budget.

Accepting always that NHS Resolution should vigorously defend unjustified claims, where appropriate it should endeavour to promptly resolve genuine cases that have good prospects of success. Not all delay is the fault of NHS Resolution, but when each extra day to resolve a claim is associated with an increase in legal costs of more than £40, factors such as its cash budget should be revisited.

The NAO report states that action by NHS Resolution and the Department of Health alone will not be enough to tackle rising costs in clinical negligence – and an overarching strategy is required.

Introducing further measures to reduce claimants’ legal costs (when they alone are not the problem) will restrict access to justice and innocent victims will go uncompensated.

The Law Society stated in its response to the Department of Health’s consultation on fixed recoverable costs in May that ‘the NHS should create a system whereby

lessons can be learned across the whole service. This would save money, improve patient care, and decrease the need for litigation’.

Asserting that claimant costs are too high and could lead to destabilisation of current hospital services may provide a good soundbite for politicians, but scratch the surface and you will see the problem has not been created by claimant lawyers – or by their innocent clients.

The NAO report records NHS Resolution’s successes in reducing claimant costs, but fails to acknowledge the role claimant solicitors play in weeding out weak claims. Defendant and claimant solicitors are indispensable in a just legal system which, as far as possible, puts innocent victims in the same position as they would have been if they had not suffered harm. Cost-cutting must not lead to curbing the rights of the wronged party.

Mark Tawn of Davey Law is a member of the Law Society’s Civil Justice Committee