Costs claimed are not costs paid

If your child were killed by a careless driver, you might think it unjust if his insurer not only fixed the level of damages it had to pay but also the legal costs you could recover. That is what the Department of Health is proposing to do for many bereaved families who sue the NHS.

The government already sets the amount of compensation for bereavement at £12,980. Now, it is proposing to cap the legal costs the NHS will have to pay out in claims up to £25,000, including in cases of fatal errors. It proposes a flat fee of £7,150 for those few cases that go to trial, and only £3,000 if the case settles pre-issue.

The NHS is a beloved institution but mistakes are made and sometimes people suffer and die due to negligent treatment. If the patient is young, very old, or has no immediate family, then the total compensation recoverable for funeral expenses and bereavement may well not exceed £25,000. Those are the very cases these proposals will affect.

Clinical negligence claims are different from other types of personal injury litigation. Proving that injury or death has been caused by clinical negligence is particularly difficult and costly.

First, proof of negligence always requires expert evidence. The courts adopt the Bolam test – a clinician is not negligent if they acted in accordance with a practice considered acceptable by a responsible body of practitioners, even if a majority of their peers would have acted otherwise.

Second, patients are by definition ill or injured before any negligent treatment. They have the difficult task of proving the alleged injury or death was avoidable. Again expert evidence is essential.

Experts do not come cheap and their often complex reports have to be scrutinised with care to ensure an accurate and coherent case is made out.

Holding the NHS to account involves a great deal of expertise and hard work. Even experienced clinical negligence lawyers often cannot assess the merits or value of a claim until both factual and expert evidence has been obtained, assessed, and exchanged.

It is true the costs of clinical negligence litigation have risen. There are many possible reasons: wider public awareness of their entitlement to redress, an increased willingness to sue the NHS, the growing complexity of modern medicine, the manner in which the health service handles and investigates complaints, and how the NHSLA defends cases.

If the NHS fights a case for three years before making an acceptable settlement offer, it might be harsh to blame the claimant for the level of costs incurred.

Notwithstanding the many possible reasons for the high costs burden on the NHS, the Department of Health has focused on only one: claimants’ lawyers. Jeremy Hunt has alleged that ‘unscrupulous law firms cream off excessive legal costs’ and the press has been fed stories of seemingly disproportionate claims for costs.

What is not so widely reported is that costs claimed are not the same as costs paid.

Furthermore, the system of payment for claimants’ lawyers – a system not of their choosing but imposed upon them by government – means they receive no fees for the hours spent on cases that are ultimately unsuccessful. They are only paid for claims that succeed. Even then they can only recover those costs that either the NHSLA agrees, or the court determines are reasonable and proportionate.

The proposed fixed recoverable costs regime would hit many bereaved families particularly hard. For example, there is no right to public funding for families at inquests.

Nevertheless, lawyers will sometimes provide representation if there is chance of recovering the costs through a subsequent claim for damages. These proposals would stop that practice. They include no provision for inquest representation, so even fewer families will have help ascertaining how their loved one died.

The government will, however, continue to pay for hospitals to have legal representation at inquests.

These proposals have been published midway through Lord Justice Jackson’s wide and thorough consultation on the introduction of fixed recoverable costs across all civil claims up to £250,000.

There is much to be said for a coherent and fair system of fixed costs that provides reasonable recompense for the work required, that reflects the particular features of clinical negligence litigation, and takes into account the impact on the bereaved.

But the DoH is singling out clinical negligence litigation for particularly harsh treatment. It may well save costs, but it will make it all the more difficult for patients and their families to hold the NHS to account.

The consultation closes on 1 May 2017. Anyone wishing to respond should visit the DoH’s website.

Nigel Poole QC is a barrister practising from Kings Chambers

@NigelPooleQC

www.kingschambers.com