Report comment

Dear Anon (@07.43 today),

At least I am willing to reveal my identity (unlike many of the Anon's on here including you). I do however recognise some of the contributors purely by what they say (e.g Anon 10th Aug @ 9.56pm).

I speak as a costs draftsman who represents Claimants and Defendants. I speak objectively on this subject and I respectfully disagree that the majority of clinical negligence cases are neither complex / involve significant disputes.

I also speak as a former fee earner who dealt with these cases regularly and compared with the other part of my caseload, this work was in my view on the same level of complexity as contested boundary disputes.

We can agree to disagree about whether the majority of cases are complex - that's a subjective term and we don't have the stats.

Negotiating with NHSLA and their representatives we do regularly and I don't believe that it's fair to blame them for failing to drive down costs. They are well aware that the Courts view these cases as complex (however that might be defined) and in fact most (and yes I do have the stats) of our cases against them go to assessment and over 95% of the time, we beat their offers. That is because the Courts do not believe that these claims are routine and run by RTA fee earners and the Court also sees just how Defendants representatives handle these cases.

The claim for costs is much like the claim for damages - we always receive unrealistically low offers (often with the caveat that if we don't want to take it we should proceed to assessment) and invariably end up incurring costs to recover an appropriate remuneration.

The latest suggestion that £250k should be the damages ceiling for a fixed costs scheme is unrealistic. A claim for £200k £250k will more often than not be defended and it will always have an inherent level of complexity in respect of liability, causation and quantum. It's difficult to think of such a case that might not.

I guess the thinking behind the proposal is that everyone protests at the £250k ceiling and at the outcome of the consultation, the ceiling is set at £100k so as to appease us all,...