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The Costs Conundrum: Access to Justice but at What Price? - Elizabeth O'Mahony, BL Claims Solicitors

23/05/17. As medical negligence Claimant lawyers gradually get accustomed to corresponding with NHS Resolution, leaving the phonetic NHSLA to one side, I found myself wondering what was the purpose of the rebranding exercise. What does the R bring that the LA did not? On reading the 21 page NHSR document "Delivering Fair Resolution and Learning from Harm", I note that the first main paragraph of the foreword professes that "the process of claiming compensation need not be adversarial and come at a high cost". Followed by, "it is our intention….to keep cases out of the courts wherever possible, minimise legal costs and deliver resolution in the broadest sense which is about more than just money". Indeed clinical negligence cases are almost certainly always about more than just money.

Reading on, the literature tells me that one of the core competencies of the NHSR remaining unchanged is "challenging over-charging by Claimant lawyers, fighting fraud and excessive claims for compensation". I cannot imagine any competent medical negligence lawyer running a fraudulent claim, so I would agree with that. However, "over charging" is a rather loaded term. What exactly is the cost of running a medical negligence claim. Can all claims be put into one basket? The fixed costs consultation would seem to say it could. But reality dictates otherwise.

Costs have always been and always will be a secondary battle ground in litigation. But when proportionality dictates that the costs can only be relative to the damages won, clearly this does not take into account the importance or complexity of the case in issue.

A leading example in terms of the Court's approach to proportionality is the nuisance case Dr Brian May v Wavell Group PLC. Dr May accepted a P36 offer in the sum of £25k before the defence was served. However the Claimant's costs amounted to a staggering £208,236.54. On assessment it was decided that the costs required to bring this case amounted to just shy of £100,000.00. It was therefore acknowledged by the court that in the pursuit of justice Dr May would have needed to spend that amount in order to win his case, and ensure justice was done and seen to be done. However, applying the test of proportionality meant that these costs were further reduced to just £ 35,000.00 +VAT. It was stated that the legal costs were disproportionate to the damages won, despite the fact it had been determined that the case could not have been brought for anything less than £100,000.00. This defies my logical brain because it means that on winning his case, Dr May was in deficit of £141,000.00. The Claimant is now worse off than if he had never brought the case at all, despite being right in the eyes of the law in so doing. In Dr May's words "Where's the proportionality in that?...Where's the justice? is impossible for any abused party to protect himself".

I think he has a point. When LASPO was being mooted, we heard so often that it was time that clinical negligence Claimants put some "skin in the game". Removing the right to legal aid for the poorest in the country save for some specific exceptions, or ensuring claimants were liable for success fees (now often waived by Claimant firms), and paying for part of the ATE premium, was that very "skin". Apparently the damage they had suffered due to the negligent act, wasn't enough of a stake.

But of course, proportionality only takes into account the sum "won" not necessarily the complexity of the case or indeed the delivery of a "resolution in the broadest sense which is about more than just money", as the NHSR would seem to agree.

A recent case involving the writer and blogger, Jack Monroe is notable here also. In this case Monroe was awarded £24,000 in a row over tweets, which suggested that she defaced a war memorial during an anti-austerity demonstration near Whitehall.

She described in an article how she had amassed six ring binders full of "hateful, poisonous messages" and suffered for at least two years. The source of the story was a number of tweets by Katie Hopkins, the well-known journalist. Mr Justice Warby found that Hopkins' tweets were defamatory and that they had caused damage to Monroe's reputation "albeit not serious or grave." The costs of the legal action far exceeded the damages, with interim costs reported at £107,000 ordered to be paid within 28 days.

£107,000 as an interim payment for damages of £24,000.00. Dr May must be wondering what he did wrong!

Personal injury and clinical negligence solicitors can only dream of such largesse in relation to their costs. The classic example of the cruelty of proportionality is that of parents of children, who die in hospital due to medical mistakes. Their claims are often restricted to the statutory bereavement award (just below £14,000) and funeral expenses but the costs of taking such a case through an inquest and beyond will almost always exceed the damages available.

If one asked a bereaved parent whether they would exchange their pain, for the six ring binders and minor damage to reputation, we think that there would a ready response. Alternatively take a person whose injury is going to cause them manageable pain for the rest of their life. Surely they would also join the queue for the ring binders. The much heralded "duty of candour" introduced by recent legislation to get NHS trusts to be more open about their mistakes and avoid protracted litigation, has proved a false start.

The test for proportionality in injury based claims is designed to be draconian. The reasonableness of what a lawyer has or has not done in the pursuit of justice, takes second place to the relationship between damages and costs. Therefore even if a lawyer has acted reasonably in bringing the claim, his costs can be reduced because the damages are too small. Clinical negligence claims are notorious for generating forests of documentation and complex legal questions.

If we return to the example of Jack Monroe, it might be said that the paying party is in fact a private individual, namely Katie Hopkins rather a public body such as the NHS. However, justice is supposed to consistent and it is difficult to see how the ordinary member of the public can compare these kinds of reputation awards with those made for life changing injuries.

The message is even less consistent when one looks at the costs awarded in these libel cases. In an injury based case, it would be very difficult to recover £107,000 in total costs (let alone as an interim payment) for a £24,000 compensation award. Injury lawyers now find themselves being asked this question all the time, by those who have to finance the claim, namely their employers.

Further high profile cases are notable here. In fact Sir Cliff Richards is currently suing the BBC for reporting the investigation about sex offences stating that they have breached his right to privacy. It has been reported that he has spent nearly £900,000.00 on his legal team and that is before Court has even become involved! The BBC is objecting to this phenomenal amount stating that they are "grossly unreasonable and disproportionate". Luckily I am sure Sir Cliff has access to a healthy bank account to assist. I cannot say the same about the usual clinical negligence claimant and indeed cannot envisage a claim that would accumulate such costs before even reaching court!

A direct correlation of damages won to costs spent, cannot be the right and fair solution. This cannot be what was envisaged by the change in assessing costs, or else where is the justice for the most vulnerable in society. I am hopeful that the NHSR's new focus on early resolution and a serious drive to apply the statutory Duty of Candour, which seems thus far to have gone awry, will assist Claimant lawyers and their clients in achieving access to justice without too high a price paid.

Elizabeth O'Mahony
Senior Solicitor
B L Claims Solicitors

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