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01 July 2015

“Excessive legal fees in clinical negligence cases” – the alternative argument

4 mins

Okay, so lawyer bashing will always be acceptable and when it’s fair (or funny) then why not? “What’s the difference between a lawyer and an accountant? Accountants know they’re boring” … Ha. But, what really isn’t acceptable is when one sided articles are published about how “unscrupulous” clinical negligence lawyers are and how the legal costs are often disproportionate to the compensation that the Claimant recovers.

So cheers for that one Ben Gummer(!)

Here’s my attempt to redress the balance. I agree that legal fees can sometimes be extremely disproportionate to what the Claimant recovers but if the work carried out isn’t “reasonable”, “proportionate” and “necessary” we simply don’t get paid for it. It’s a complete fallacy that clinical negligence lawyers get paid for all the work that is done on a case. When a case settles, a bill of all the work carried out up until that point is drawn up and you then spend months, if not years, arguing over every single item claimed for. If the level of the Claimant’s  costs cannot be agreed then the court can be asked to consider whether they are reasonable, proportionate and necessary. In practice this rarely happens as the NHS recognise that the court will consider the conduct of the parties in detail and make a reasonable order based on all the facts. They will not be fooled by sound bite nonsense about ‘unscrupulous’ lawyers.  

I want to take a look at some of the common reasons for why costs can be racked up in clinical negligence cases in our department’s experience.

1. Liability isn’t admitted early on by the defendant

My colleagues and I have had a number of cases where we have pressed the defendant to admit liability early on, i.e. accept that they did something wrong so that we can move on to quantifying the claim and save costs on investigating. Sometimes there is a blanket refusal to do this, despite the facts being obvious.

We had a case here about 6 months ago where the GP failed to read a thyroid test result correctly and diagnosed the patient as having the wrong illness. She wasn’t given the medication she needed for over a year until the mistake was realised and suffered illness due to this. Liability couldn’t have been clearer here- i.e. a reasonably competent GP would not have made that same mistake. Frustratingly, the defendant refused to admit liability until we had a medical report from an independent GP backing our arguments up. In cases like this, your hands are tied and so we had to instruct a GP expert and even he was surprised that we had to get this report. He couldn’t believe that liability wasn’t admitted early on.

All of this work then adds time and expenses onto the cost of the claim which we would much prefer was avoided. 

2. Reasonable offers aren’t considered

Alternatively, we recently settled a pressure sore case against a care institution after putting forward a very reasonable offer to settle the case about 6 months before it was accepted. The offer just wasn’t considered and therefore lots of additional work was put in during the months following on, only for the defendant to then go back and accept that very same offer!

3. We are forced to issue proceedings at court

A lot of the time cases can be dealt with without issuing proceedings at court, i.e. you get your evidence together and disclose it to the defendant in an attempt to start negotiating a settlement. However, this all needs to be done before the limitation period expires otherwise your client can lose their right to bring a claim. Our general stance in the department I work in is that we request an extension to the limitation period rather than issuing proceedings in order to save costs (have you heard about the court fee rises…!?) but sometimes these requests aren’t agreed by the defendant. This means that you’ve got no other choice but to issue proceedings at court to protect the client’s position and this could easily add thousands of pounds, if not more, onto the fees.

In all of the above examples I have given, the compensation received was less than £100,000 but in all cases, the injuries were significant and life changing to the claimants. If we were held to a fixed costs regime where our hands were tied and the amount of work we could do was limited, well then justice would not have been achieved and reasonable settlements may not have been obtained.

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