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.

The master said change ‘should not be driven on the basis of out-of-date statistics and the short-term financial interest of the NHS’, despite the ‘perhaps irresistible momentum’ towards fixed costs in civil claims.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

 

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