News Category 3
The Risks of a Fixed-Costs Regime for Clinical Negligence Cases - Catherine Dixon, Law Society Chief Executive
17/11/15. Risk is defined as, 'a situation involving exposure to danger'. In 2012 a study was published by Sir Bruce Keogh, the medical director of the NHS in England, highlighting the increased risk of death for patients admitted to hospital at weekends compared to a Wednesday. Keogh then published a report calling on the NHS to adopt 10 standards to improve the quality of care available at weekends.
The government's decision to prioritise the issue of seven day health services has led to a heated debate between the health secretary, Jeremy Hunt, and junior doctors. As the row over the government’s proposed new contract has intensified, both parties have successfully conveyed one clear message to the public: patients are at risk in healthcare settings whether seven day services are provided, or not.
The government is adamant that standards of care are currently not uniform across the week. Meanwhile junior doctors have argued that changes to their contracts to include evening and Saturdays up to 10 p.m. would have “grave implications” for patient safety.
The safety message was emphasised further in early November when junior doctors rejected the health secretary's last-minute pay offer and went ahead with a ballot for strike action. Responding to the move, a Department of Health spokesperson said: “Strike action always puts patients at risk".
The reality is that patients, who face risk in the healthcare system for a whole variety of reasons, are some of the most vulnerable and marginalised in society. These are the very same people who may be left without legal advice and representation if the Department of Health introduces a fixed-costs scheme for claimant solicitor fees.
The Department of Health’s response to reduce the cost of clinical negligence in the NHS is to target claimant solicitors’ costs by proposing to introduce fixed costs and cap fees to expert witnesses. Such a move would, more than likely, reduce the amount paid to specialist solicitors for representing those who have been harmed by negligent NHS care and may make it less likely that a claim will be brought – reducing the chance that a harmed patient will get redress.
The government insists that a fixed costs scheme will help to tackle the financial burden on the NHS arising from successful claims of clinical negligence. The fact is the introduction of fixed costs, especially if set too low, could seriously undermine the ability of people harmed by negligent NHS care to receive the specialist legal advice they need to obtain the compensation they are entitled to in law. A fixed-fees scheme could result in solicitors not being able to take on some cases because those cases are not economically viable.
When the Law Society responded to the government’s pre-consultation in early autumn we made it clear that the proposed changes are highly premature. We drew attention to the fact that the changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which will significantly reduce costs, have not yet been fully quantified. We reasoned that measures to reduce legal costs through LASPO must be fully evaluated to understand their impact. Only then can any next steps be decided.
During the preparation of our pre-consultation response we sought the views of our members. A theme that featured in the hundreds of responses was the fact that there is no correlation between the value of a clinical negligence case and its complexity. There is a real danger that any fixed-costs regime based on value of claims would fail to recognise the amount of work required to deal with the nuances and complexities that frequently arise in clinical negligence cases.
We strongly argue that the government’s priority should be to reduce incidents of harm, rather than focus on reducing the legal costs incurred as a result of patients seeking the compensation they need to help them get on with their lives after suffering often devastating injuries.
The claims system plays an important role in ensuring that cases of clinical negligence are properly investigated. The government’s emerging proposals could seriously impinge upon access to justice and curb patients’ ability to pursue cases which are in the public interest. Patients who are harmed by negligent NHS care must appropriately compensated and problems with NHS care which often result in significant harm should be brought to light, lessons learned and crucial changes made within the NHS to prevent recurrence.
Proper representation takes time and requires access to medical experts. Our members have pointed out that the finances available under a fixed-costs regime might be inadequate to fund a proper investigation and that it may be impossible to pay for the expert reports that are essential to making a case.
Would ‘the best experts’, actually be willing to work for capped rates proposed by the government? Experts will only take on the work if they feel that the remuneration is adequate and reflects the complexity of the case and the specialist knowledge they provide. If their fees have to be ‘topped up’ by the claimant, this would effectively reduce the amount of compensation received by negligently harmed patients. Another reality is the number of experts required to establish breach of duty and causation of injury. This expert knowledge is essential in establishing what went wrong, and whether the care was negligent and resulted in harm to the patient. Claimant solicitors consider that there is already an uneven playing field in this area, with many arguing that any cap on fees must apply to expert costs on both sides.
Solicitors play an important role in screening cases and thereby significantly reduce the number of unmeritorious claims which would otherwise be brought against the NHS.
Our members are concerned that clinical negligence work will cease to be economically viable if a fixed-costs regime is introduced which fails to appropriately compensate claimant solicitors for the work they do in screening out unmeritorious claims. Without solicitors undertaking this screening, more cases could be submitted, increasing the costs incurred by the NHS.
Our members referred to the possibility that a fixed-fees scheme could lead to the reorganisation of some businesses so that more of the investigation would be handled by less-experienced staff in order to reduce costs. This could mean that key issues are missed. Worse still, if the levels are set too low for a reasonable job to be done for a reasonable return it would open the door for inexperienced practitioners to take on the work, which in turn is likely to produce a poor outcome for the client.
One particularly worrying theme that emerged time and again from our engagement with members was the disproportionate effect that the changes would have on access to justice for more vulnerable citizens. This is because loss of earnings is a major consideration in assessing the value of a claim. For example, claimants on low incomes, the disabled, people with mental health conditions, the elderly and children are much more likely to fall within the ‘lower-value’ claims bracket.
The most common category of cases where it was felt that a fixed-costs regime would be wholly inappropriate was in cases where there was a fatality. Claims for compensation in fatal cases are capped in value where there are no dependants. This means they would fall within the lowest suggested threshold referred to in the consultation.
We would be deeply concerned if incidents where someone has died as a result of negligent care are not properly investigated because a fixed costs scheme restricts solicitors from representing the deceased’s family. This also highlights the fact that the amount of compensation that may be awarded does not reflect the true value to those who have been harmed.
While we await the detail of the actual proposals we are asking solicitors to submit case studies to This email address is being protected from spambots. You need JavaScript enabled to view it. to help formulate our consultation response. We will continue to seek the views of practitioners as we await the launch of the formal consultation.
For the sake of the NHS and its patients, the Department of Health must listen to practitioners before moving forward.
Catherine Dixon
Law Society Chief Executive
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Summary of Recent Cases, November 2015
15/11/15. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Christine Reaney v (1) University Hospital of North Staffordshire NHS Trust (2) Mid Staffordshire NHS Foundation Trust [2015] EWCA Civ 1119
The claimant was left paralysed due to transverse myelitis. As a result, she required several hours care each week, which would rise to 31.5 hours after the age of 75. However, whilst in hospital, she developed a number of pressure sores with additional complications, which meant that she needed 24 hour care. The defendants admitted...
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Gemma Purser v Robert Hibbs & Anor [2015] EWHC 1792 (QB) - Gary Knight, Harmans
13/11/15. Consideration of the wording between “old” and “new” Part 36 requirements when offer accepted out of time. Before Judge Moloney QC sitting as a Judge of the High Court the Defendant had made an application within a personal injury action pursuant to the former Part 36 Rule 10(5) to deal with the late acceptance of a Part 36 offer.
The case was a road traffic accident which took place on 13 November 2010 wherein liability was admitted and expert evidence assembled well before proceedings were actually commenced; surveillance was undertaken by the Defendant insurers over two periods pre-commencement (June 2012 and January/February 2013) the evidence disclosed nothing suspicious or discreditable.
The Defendant made a Part 36 offer in the sum of £95,000.00 23 July 2013 which was not accepted within the relevant period though the offer remained open for acceptance and was accepted at the end of 2014...
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Fixed Costs in RTA, EL and PL Multi Track Claims - Ian Miller, 1 Chancery Lane
12/11/15. 
A claim which starts under the RTA protocol but proceeds on the multi track remains subject to the fixed recoverable costs regime. So held HHJ David Grant in the case of Qader v Esure (Unreported, 15th October 2015). The case concerned a claim for damages for personal injury arising out of an RTA. The value of the claim was pleaded at £5,000 to £15,000. The Defendant alleged that the accident had been staged by the Claimant and the claim was allocated to the multi track. At a CCMC a district judge ordered that “CPR 45.29A fixed costs will apply to the claimant’s costs. Costs management does not apply to this case.” The Claimant appealed.
CPR rule 45.29A is to be found in Section IIIA of Part 45, which is entitled "Claims which no longer continue under the RTA or EL/PL Pre-Action Protocols - Fixed Recoverable Costs". Paragraph (1) provides as follows...
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Brian Kite v The Phoenix Pub Group: Addressing the Opportunistic Use of QOCS - Theo Barclay, Hailsham Chambers
11/11/15. In this county court decision, a district judge made it clear that claimants who intend to bend the qualified one-way costs shifting (QOCS) rules to gain tactical advantage will be offered short shrift by the courts. This decision is a good illustration of the increasing tendency of district judges to tackle opportunistic conduct by court users robustly.
As is well known, under QOCS defendants will be ordered to pay the costs of successful claimants but, unless exceptions apply, will not recover their costs if the claim is successfully defended. A costs order will be made, but it will not be enforceable.
Claimants have inevitably attempted to push the boundaries of QOCS, however. This has left district judges to deal with innovative and bold attempts by claimants to deploy the -already very claimant-friendly - provisions to their advantage.
Brian Kite v The Phoenix Pub Group is a good example of this. In this case the claimant issued proceedings for injuries he suffered in the Defendant pub car park. The defendant’s position was that a different company owned the pub at the date of the accident, so they could not be liable for the injuries suffered. The claimant served proceedings at the pub’s address. After receiving no reply, default judgment was entered.
The defendant then made an application to set aside default judgment because service was defective and an application to strike out the claim as there were no reasonable grounds for bringing it. At the hearing of the applications, the judge set aside default judgment under the mandatory grounds set out at r13.2 of the Civil Procedure Rules. The hearing of the strike out application adjourned to allow the claimant time to prepare for it. Importantly, the district judge made an order that the claimant should pay the defendant’s costs of the hearing.
The claimant’s solicitors then wrote to the defendant’s solicitors and reminded them that, as the case was subject to QOCS, the costs order that had been awarded could not be enforced. In response, the defendant’s solicitors argued that CPR 44.15 had to be considered. CPR 44.15 states that the effects of QOCS are disapplied if a case is struck out as the claimant has disclosed no reasonable grounds for bringing the proceedings. The defendant argued that the case would be struck out at the next hearing, and, as a result, they would be able to enforce their existing costs order any further costs orders.
The claimant’s response was to attempt to discontinue the claim to avoid it being brought within the CPR 44.15 exception, as the case would have been discontinued before it was struck out. The plan was to allow the claimant to retain the benefit of QOCS and, consequently, to render the previous costs order unenforceable and avoid a further one.
The defendant applied to the court for an order that set aside the claimant’s notice of discontinuance. In the hearing of that application, the defendant argued the courts should not tolerate or condone the claimant’s behaviour. They reasoned that the claimant had opportunistically sought to manipulate the QOCS provisions to achieve a tactical advantage that frustrated the purpose of those provisions.
The district judge duly used the courts’ general case management powers to set aside the notice of discontinuance. He said he was guided by the overriding objective, and noted that it would not be in the interests of justice to allow the claimant to benefit from their opportunism. In the circumstances of the case, it was clear that the claimant should not be entitled to the protection of QOCS. The court could not condone the pursuit of poor claims that are then promptly discontinued after there have been cost orders once it became clear that the claim will be struck out.
The district judge proceeded to strike out the claimant’s case and award the defendant costs of the hearing. Pursuant to the exception at CPR 44.15, QOCS was disapplied and the defendant could enforce both their costs orders.
It is suggested that the approach taken in this case would be taken by other district judges – although it does not, of course, bind them. Further, there will inevitably be other innovative and opportunistic attempts to manipulate the new QOCS rules while they are in their infancy.
Claimant solicitors should note that claimants will likely not retain the protection of QOCS if claims that have no merit are discontinued. Judges will, as in this case, take a dim view of attempts to abuse the QOCS regime for tactical advantage and will not hesitate to utilise their case management powers to block similar behaviour.
Theo Barclay
Hailsham Chambers
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