Hodge Jones & Allen mount campaign against clinical negligence costs cap

Ministers at the Department of Health (DoH) should take the time to appreciate the work done by clinical negligence lawyers before controversial proposals to cap litigation costs lead to an 'insidious erosion of justice', says a leading medical negligence lawyer.

The parliamentary under-secretary for the DoH, Ben Gummer, has said he intends to limit the costs for clinical negligence claims up to £100,000.

The junior health minister said: 'Unscrupulously, some lawyers have used patient claims to load grossly excessive costs onto the NHS and charge far more than the patient receives in compensation.'

By way of example, the DoH released sketchy details of a case where a patient received £11,800, whereas their legal fees amounted to £175,000.

Now, in a strongly worded letter seen by SJ, Hodge Jones & Allen (HJA) partner, Nina Ali, has told Gummer that such a statement was 'more worthy of a Daily Mail headline, rather than something that one would expect from a minister responsible for health'.

Ali described the MP for Ipswich's portrayal of litigation against the health service as 'sensationalist' and a 'gross misrepresentation of the realities of clinical negligence cases'.

The clinical negligence specialist said the proposal to impose fixed costs in such cases would amount to an 'insidious erosion of justice', which would lead to decreasing accountability of the medical profession.

'The introduction of fixed fees will lead to a double injustice,' she added. 'The patient will have suffered an injury which may have life changing consequences. To add insult to injury, unless the value of [the] claim is in excess of £100,000 or £250,000 [they] will be unable to find a lawyer to investigate and pursue matters as it will simply not be commercially possible for any lawyer to do so.'

In order to educate the Conservative MP on the challenges of running a clinical negligence claim, the former cardiology nurse, who qualified as a solicitor in 2002, has invited Gummer to visit HJA to see first-hand the work the firm undertakes.

'Were you to spend a couple of days or even a few hours on the ground going through some of the cases we deal with, had a proper look at the extensive investigation that is often necessary, took on board the hurdle we have to overcome in order to bring a successful action, and were briefed of the defendants' behaviour, you would gain an understanding of the negligence encountered by patients, the tactics employed by defendants and, on a more positive note, the direct changes to NHS procedures that can and often do result as a consequence of litigation that lead to improved outcomes and benefit all patients,' wrote Ali.

The HJA partner also highlighted Sir Rupert Jackson's sweeping costs reforms that were introduced into the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012.

'As a consequence of the Jackson reforms, lawyers' fees are already being tightly controlled, capped, and limited. Costs already have to be "reasonable and proportionate" before they are paid by the insurer or NHS, and the courts rightly already hold the power to reduce any bill found to be excessive,' she explained.

'The bottom line is that the idea being perpetuated by government and consequently the press that lawyers can charge whatever they want is quite simply wrong.' Following the Tory minister's statement on unscrupulous behaviour, The Telegraph listed the top ten NHS trusts by pay-out for medical negligence claims from 2009/10 to 2013/14, as well as the firms who received the top payments from claims, inclusive of damages and costs.

Also in her letter, Ali took aim at the recent announcement made by justice minister Shailesh Vara that further increases to court fees, from £10,000 to 'at least £20,000', were in the pipeline.

Despite claims from Vara that those involved in personal injury or clinical negligence would be excluded from the higher cap, Ali commented she took little comfort from such reassurances.

SJ has contacted Ben Gummer's office for a response to Ali's letter and to ask if the minister would be taking up HJA's offer of attending its offices to become more familiar with an area of law with which he intends to fiddle.

John van der Luit-Drummond is deputy editor for Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD