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'No moderating influence' on claimant med neg lawyers, MPs are told

10 May 2011

There is “no moderating influence” on the work of claimant medical negligence lawyers, the House of Commons health select committee was told this morning.

Carole Ayre, head of clinical negligence at Browne Jacobson, said claimant lawyers could make “several hundred per cent” mark-ups in their profit margins and she “hardly ever saw” claims failing.

She was immediately interrupted by Muiris Lyons, president of APIL, who said her comments "can’t be right” and reminded her of figures from the NHS Litigation Authority showing that 40 per cent of claims were discontinued.

Ayre said she was not suggesting claimant solicitors were guilty of anything “illegal or improper”, but there were cases where she had received a bill of £70,000 for a claim worth £5,000.

“We deal with some claimant firms who don’t know one end of a clinical negligence claim from another and charge very high fees,” she said.

She said these firms were “very reliant on counsel”, unsure how to proceed and could not value claims themselves.

Nicola Wainwright, medical negligence partner at Leigh Day & Co, said claimant solicitors risk assessed cases before they took them on.

She said they were constrained by the need to secure ATE insurance and the solicitor’s duty to do their best for their clients.

Lyons said APIL had called for conditional fee success fees to be fixed, so that if the NHSLA accepted liability in the first four months it would not pay a success fee.

Earlier in the session, Des Hudson, chief executive of the Law Society, attacked claims management companies for adding an “unnecessary layer of cost” to personal injury actions.

He said the LSB, which is currently considering the issue of referral fees, could tackle the issue by banning them across all legal services.

Hudson warned that it would be a “great day” for insurance companies if the recommendations in the Jackson report and the removal of legal aid for medical negligence cases were implemented by the government.

He said the courts would only be used by the beneficiaries of charity, the rich and powerful, and those with cases that were cheap and easy to pursue.

“This would amount to a generational change in the concept of access to justice in this country,” he said.

Lyons said the majority of personal injury claimants with standard RTA claims would not be worse off as a result of the Jackson proposals, but “those with medical negligence cases which are difficult to run”.

Wainwright added that the number of solicitors doing clinical negligence work would diminish and cash flow problems would make it harder to bring cases on a conditional fee basis, particularly if legal aid was removed.

The four solicitors were speaking at the final oral evidence session of the health committee’s inquiry into NHS complaints and litigation. The committee was chaired by former health secretary Stephen Dorrell.

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