Claimant costs in clinical negligence cases “continue to spiral”

NHS Resolution (NHSR) – the new name for the NHS Litigation Authority – paid out nearly £500m in claimant costs over the last year, which was a 19% rise on the previous 12 months, its annual report has shown.


It paid nearly £1.1bn in damages to clinical claimants in the year to 31 March 2017, up 14%, while claimant legal costs were a shade under £500m. Defence costs rose by a more modest 5% to £126m.


By contrast, claimant legal costs for non-clinical claims – such as slips, trips and falls – were 21% lower at £19.7m, which NHSR attributed to “the continuing impact of fixed recoverable costs for this area and efficiencies in the claims process”, even though damages went up 15% to £30.7m.


The Department of Health has yet to announce whether it will introduce fixed recoverable costs for cases worth up to £25,000; NHSR wants a £100,000 threshold.


The report repeated NHSR’s regular complaint that claimant legal costs “have, over time become increasingly disproportionate to damages, particularly for lower value claims”, but said 2016/17 was the first year to see it go down slightly. Costs in cases worth up to £100,000 now represent 53.5% of the total claim value, down from 54.8%.


The report said NHSR used the recent tender for its defence panel to introduce a pricing structure focused on early investigation “so that we can avoid formal court proceedings wherever possible”.


It also procured its first mediation panel during the year, with one of the three spots going to costs mediation provider CADR. “Getting the lawyers on both sides engaged in mediation has been challenging, but the panel has already been active in building interest with some encouraging early signs,” the report said.


The report showed that in the year to 31 March 2017, the number of new clinical negligence claims fell 2.5% to 10,686, which continued the decline since the 2013/14 high caused by a rush of claims before LASPO came into force.


Of the 17,338 claims concluded during the year, 37.7% ended before proceedings were issued with no payment of damages and 30.1% with damages. A quarter settled post-proceedings with damages, and just 6.1% without. Some 121 cases went to trial, with damages awarded in 49 of them.


In all, 55.8% of cases concluded with a payment of damages.


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Costs News
Published date
20 Jul 2017

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