Clinical Negligence News

Clinical Negligence claims against NHS are going up, David Tweedie comments

The annual report of the NHS Litigation Authority for the year to March 2009 reveals two significant features:

The number of new claims notified, having been more or less stable in the previous 4 years, suddenly increased by 11% to 6080.
The amount of legal costs which the NHS is paying out to Claimants' lawyers on those claims where the Claimant has been successful has gone up significantly.

Is there a common factor in these features?

I think there is - the greater use of Conditional Fee Agreements (CFAs). They are the much-maligned "no win - no fee" arrangements whereby the Claimant's lawyers are paid only if they are successful in the claim - but if they are successful, they may claim an additional fee known as a success fee from the Defendant.

Another feature of CFAs is that they often involve the need for the Claimant to take out a form of insurance known as an "After The Event" (ATE) policy to cover the Claimant against the risks of losing - ie. having to pay the Defendant's costs and also the Claimant's own non-lawyer expenses such as court fees and expert fees. These policies are exceptionally expensive but are indispensible if the Claimant is not to risk incurring a huge debt or, at worst, bankruptcy.

CFAs were introduced in 1995 (at which time the success fee had to be paid by the Claimant) but they were later reformed, making them more Claimant-friendly. Claimant clinical negligence lawyers were wary of them at first but gradually have become more comfortable with managing the risks to their firms that such litigation carries.

Risk-free Litigation

If the Claimant can now find a firm of solicitors who are willing to take his case on and those solicitors can get ATE insurance to back it, the case can be prosecuted on a risk-free basis from the Claimant's point of view - all the financial risk in the case has been taken off his hands by the lawyers and the insurers.

Clinical negligence claims are exceptionally expensive - it is difficult to imagine even the simplest case costing less than £45,000.00 in Claimant's costs alone - and so if the prospective Claimant does not have pre-existing insurance (e.g. through their home contents policy) or do not qualify for Public Funding (Legal Aid) the risk would be prohibitive. CFAs in many cases present the only access for all but the richest or poorest in our society.

In my view therefore the reason why the NHS is facing more claims is simply because more people are able to make claims and, one hopes, thereby achieve justice. Last year claims funded by CFA exceeded those supported by Public Funding.

The corollary is that legal costs per claim go up because of the success fee and the ATE insurance premium.

It may be that as more clinical negligence claims are funded by CFA and more ATE policies are taken out, premiums will go down because the insurers will have a better idea of the track record of Claimant firms.

Public funding has over recent years become more difficult to obtain as financial qualification is squeezed. CFAs represent the only way for many people of modest means to finance clinical negligence claims.

David Tweedie
Clinical Negligence Solicitor
Principal, Lees Solicitors LLP

This article provides a summary of a recent case/change in law/news item. It is intended for general information purposes only and is not to be relied upon. It does not constitute legal advice and should not be treated under any circumstances as a substitute for legal advice. Lees Solicitors LLP does not accept any responsibility for any loss that may arise from reliance upon the information contained within this article. The copyright in this article is owned by Lees Solicitors LLP and permission must be sought before reproduction or publishing.

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