Department moves to cap clinical negligence legal costs

Publishing responses to a consultation on fixed legal costs for cases where compensation is up to £25,000, health and social care secretary Jeremy Hunt said the working group would examine improvements in the clinical negligence claims process, including a schedule of costs.

The group’s proposals would apply to care given in England and Wales (NHS and private) and it is expected that recommendations will be published in the autumn.

Most clinical negligence litigation settled in the patient’s favour lead to compensation of £25,000 or less – 63% of cases, according to Lord Justice Jackson, who has reviewed civil litigation costs for the government and will lead the group.

Last year, a National Audit Office report said in the 10 years to 2016/17 spending on the clinical negligence scheme for trusts had quadrupled to £1.6bn. While the rising number of claims accounted for 45% of the increase, the award of higher damages accounted for 33% and claimant legal costs 21%. The value of claimant legal costs had grown from £77m in 2006/07 to £487m in 2016/17.

With an increase in low- and medium-value claims in 2016/17 (up to £250,000), claimant legal costs outstripped damages awarded in 61% of settled cases, the NAO said.

The initial focus of the group appears to be on claims of up to £25,000, though Lord Justice Jackson has spoken in favour of introducing fixed recoverable costs in cases up to £100,000.

The NHS Confederation has called for lawyers’ fees in clinical negligence cases to be fixed. Chief executive Niall Dickson (pictured) said the announcement of the group was a step in the right direction. ‘It must surely be fair to cap the amount lawyers charge for their costs, and we welcome the decision to set up a group to work on this. We trust the government will act quickly on its recommendations.’

He also welcomed the government’s determination to tackle clinical negligence claims more widely. ‘We fully accept there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society’s ability to pay. Money used for this cannot be spent on frontline care.’

The Department of Health and Social Care said NHS Resolution had worked with claimant representatives to develop a schedule of fixed costs in 2011/12. However, the process collapsed after objections to linking costs to the value of a clinical negligence claim and the level of costs allowed for at various stages of the process.

The consultation showed a clear split between lawyers who represented claimants (only 15% agreed costs should be fixed) and those who represented defendants (86% backed fixed recoverable costs).

Alongside the responses, the Department published an analysis of fixed-cost options. It recommended using a matrix derived from average base costs to calculate the fixed recoverable costs in clinical negligence claims.