The issue of the extreme cost incurred as a result of Clinical Negligence claims has made several news articles over recent months. A notable article published by the Guardian newspaper online (“NHS sounds compensation alarm after £120,000 lawyer bill for £5,000 claim”) claimed that a third of the £1.1bn paid out by the NHS in compensation last year was handed to Solicitors, with one firm submitting a £121,700 Bill following a successful £5,000 claim. This was an article that prompted a flurry of comments, a large number of which decried Solicitors as “parasites” and “low lifes.”
What that article fails to set out is how much of that pay out related to interest payable on the costs. It has long been the position that the NHS Litigation Authority will not, under any circumstances, make interim payments on account of costs. If this was done, as indeed it is in a significant number of personal injury cases, then a vast amount could be saved in interest, thereby reducing the total amount paid out by the NHS significantly.
The extreme example referred to above involved a case where the NHS eventually agreed to pay out £5,000 for the failure to diagnose a patient’s tumour on the kidney. Presumably therefore the NHS accepted their error, but only at a late stage, otherwise the level of costs claim would have been nowhere near £121,700. Perhaps if the NHS was quicker to take ownership of their mistakes, such high levels of costs would not be incurred by Solicitors who are merely doing their job on behalf of Claimants who have been badly let down by the NHS.
The Guardian article sought to paint Claimant clinical negligence Solicitors in a poor light, insinuating that costs were inflated in order to maximise profit. However, in clinical negligence claims it is often the desire to see justice be done, rather than just financial incentive, that motivates Claimants and their representation. Should the NHS continue to fail to admit their errors in a timely fashion, and force cases to proceed to a very late stage, then they should expect to continue to receive Bills that reflect this.
Those who come up against the NHSLA, and those representing them regularly, will not find the supposed disproportionality, all that “unjust”. There is a real feeling that the NHSLA, sitting comfortably in their glass house, is attempting to throw boulders at those they oppose, and we all know how the saying goes. Let us perhaps hand the NHSLA a mirror for a moment, in order that they can take a long hard look at themselves and specifically the conduct that leads to often hefty Claimant costs. Claimant solicitors often encounter protracted instances of litigation delays, which result in often sensitive claims being strung out in the interests of the NHSLA and are seen as a very deliberate tactic.
A quote from Jonathan Wheeler, president of the Association of Personal Injury Lawyers, does go some way to vindicate the costs claimed by Claimant solicitors, “Savings could be made if the NHSLA were to admit liability where is it obviously due, rather than defend until the door of the court and then settle at the last minute, having run up huge costs on both sides along the way. The NHS would help the NHSLA in its commitment to defend public funds if it was to steer its focus onto preventing harm in the first place and righting wrongs when they happen”.
It does appear that a more realistic assessment of which cases ought to be defended which cases ought to be compromised would be a far more effective means by which the NHSLA could save money, as opposed to than engaging in delay and avoidance, which only serves to cause further anguish Claimant victims and increases costs in the long term.
Claimant firms are additionally lining up to profess their frustration with the NHSLA and their alleged inability to make interim payments. The frustration is largely in relation to damages payments however as a costs firm MRN have encountered those same frustrations in the NHSLA’s failure to make interim payments in relation to costs. When considering substantive claims, interim payments do play a vital role in clinical negligence claims in paying for care packages, accommodation adaptation and more commonly physiotherapy/psychological treatment plans.
It is fair to say that Claimant Solicitor reactions to the Guardian article could be described as aghast, and the issue has been “blogged” about extensively online as to justification for claimed costs, and parallels drawn to alleged poor conduct on the part of the NHSLA. One can only hope that such reactions will elicit a positive revolution. Will the NHSLA now conduct themselves in a manner which is more conducive to amicable settlement? One can only watch this space.
Article by Helen Coates and Gemma Wynne-Taylor