Clinical negligence practitioners on both the claimant and defendant sides are waiting with bated breath to see how courts will deal with arguments on proportionality. Master Cook is reported to have said in a recent speech that costs that are greater than damages ‘make no sense’ and that ‘the claim value is the main factor when assessing proportionality’. Assuming Master Cook has been quoted accurately, can that really be right?

What the rules say

Rule 44.3 (5) of the Civil Procedure Rules states that costs incurred are proportionate if they bear a reasonable relationship to five factors:

  • the sums in issue in the proceedings;
  • the value of any non-monetary relief in issue in the proceedings;
  • the complexity of the proceedings;
  • any additional work generated by the paying party; and
  • any wider factors involved in the proceedings, such as reputation or public importance.It does not say that costs that exceed the sums in issue are disproportionate. Equally, primacy is not afforded to any of the five factors; there is no ‘main factor’ in the rules.

Pure and relative value

Let us take three hypothetical claimants who attend their local hospital to undergo surgery for a fractured tibia. The surgeon in each case is negligent and each claimant ends up with a malunion and an ankle that is painful if they run. All three claimants instruct solicitors, who obtain expert medical evidence. The claims are vigorously defended at every stage, but all succeed at trial and each is awarded general damages of £10,000. Each solicitor has identical costs of £40,000. Here is where they differ:

  • Claimant A is 70, retired, in receipt of a state pension of £110 per week and suffered no financial losses. His total damages are £10,000 – a quarter of the costs incurred.
  • Claimant B is 35 and had to take six months’ unpaid absence from his job as a warehouse worker, and lost net pay of £10,000. His total damages are £20,000 – half the costs incurred.
  • Claimant C is 35 and a professional footballer. He has had to retire six months sooner than planned and lost £250,000 in earnings. His total damages are £260,000 – six and a half times the costs incurred.

If the pure monetary value of the sums in issue was the main factor in deciding proportionality then the pensioner and warehouse worker, despite suffering identical injuries to the professional footballer and facing the same medical and legal issues in winning their claims, will have incurred costs that were disproportionate and which ‘made no sense’.

If relative value to the claimants of the sums in issue is considered instead, the pensioner, despite receiving the lowest sum, received the most compensation (about 90 weeks’ pay), while the footballer received the highest sum but the lowest compensation (about 27 weeks’ pay).

There are many cases, particularly those involving injury or death of a child or elderly person, where the value of the claim in pure monetary terms will be lower than the costs of bringing the claim. If those costs are held to be disproportionate, a vulnerable section of society will lose their ability to seek redress in the courts if injured by negligence. Can that be right? Might it be argued that having to pay ‘disproportionate’ costs is the price to pay for negligence and a deterrent to poor treatment? If it is true (as is often said) that litigation influences medical treatment, would this end with doctors paying greater attention to wealthier patients at the expense of low-earners, children and the elderly, because it is only the high-earners who will be able to justify the cost of bringing a claim?

The real factors

Broadly speaking, the value of the claim has little bearing on the costs that will be incurred in winning a clinical negligence claim. The biggest factors in deciding the costs in clinical negligence claims are the number of experts required and the conduct of the defendant.

Our three hypothetical claimants all required precisely the same expert evidence in their claims and their lawyers had to have the same degree of understanding of the medical issues in their treatment in order to prepare the case and present it at trial. The requirement for, and number of, experts required is a feature of the complexity of the litigation (rule 44.3(5)(c)).

The defendant in each case defended the case to trial, instead of admitting liability in response to the letter of claim or even making a part 36 offer, and so generated the additional work required to bring the claim to trial (rule 44.3(5)(d)).

The judiciary needs to consider all five of the factors outlined in rule 44.3 (5), and should give equal (if not greater) consideration to the real factors that drive the costs in clinical negligence claims.

If we see the claim value as the main factor in assessing proportionality, will we have to start telling people that because they do not earn very much the court would consider it disproportionate for them to incur the cost of bringing a claim? This proposition goes against the grain for those of us in the profession who believe that anyone who suffers because of clinical negligence or a medical accident should have access to justice – not just those who earn enough to make the costs ‘make sense’.

Alan Mendham is a partner at Gadsby Wicks Solicitors, a specialist claimant-only clinical negligence practice