By: 1 February 2022
UK government proposes cap for lower value clinical negligence cases

The UK government has a proposed a new cap “to ensure legal costs for lower value clinical negligence cases are proportionate and fair”, claiming that such a system will save £500 million for the NHS.

The proposed cap, now open to consultation, will apply to ‘lower value’ clinical negligence claims valued up to and including £25,000 in England and Wales.

A new streamlined process to ensure claims are processed more quickly, ensuring faster resolution and reducing the need to go to court has also been proposed.

This is “closely aligned” Civil Justice Council’s recommendations for such a process, following Sir Rupert Jackson’s proposals in 2017.

The new proposed process will consist of two tracks for claims, assigned according to their complexity, as well as two resolution stages to encourage agreement and minimise delay, cost and distress, including a stocktake meeting between parties and a neutral evaluation by a barrister.

The UK Department of Health and Social Care cited examples of lawyers claiming exorbitant costs on low-value clinical negligence claims as evidence for the need for a cap and new process.

With no limit, lawyer costs are claiming, on average, “double the compensation received by patients for lower value claims”, according to the Department of Health and Social Care: “In one case, lawyers claimed £72,000 in legal costs for a case in which the patient was awarded £3,000.” 

With the overall cost of clinical negligence in England rising from £582 million in 2006/7 to £2.2 billion in 2020/21, and legal costs for all claims increasing more than fourfold to £433 million since 2006/7, the UK government believes now is the time to act.

Maria Caulfield, the patient safety minister for the UK government, said in a statement: “Unfortunately, we are seeing some law firms profiting at the NHS’ expense through legal costs that far outweigh the actual compensation awarded to patients. This diverts resources from the NHS frontline as staff work hard to tackle the COVID-19 backlogs.”  

“Our proposals will cap legal costs for lower value claims to ensure they are fair and proportionate, and ensure patients’ claims are resolved as swiftly as possible without reducing the compensation they deserve.”

Reacting to the proposals and consultation, Stephanie Prior, head of clinical negligence at Osbornes Law, said: “Bringing in fixed costs will seriously preclude some of the most vulnerable people from getting access to justice.” 

“A lot of low value claims, such as when there is a stillbirth or somebody dies with no dependents or spouse, are deeply traumatic for the families involved. If these changes are brought in then I expect many specialist clinical negligence lawyers will not be able to take on these low value claims anymore.”

Prior continued: “While it is true that costs can spiral on cases this is generally because the NHS lawyers sometimes drag out cases for an inordinate amount of time, which inevitably has to be paid for.”

“If the NHS legal teams were more efficient, then these matters could be dealt with a lot more swiftly, meaning costs are significantly less. It would be far better for the NHS to look after the people it has wronged swiftly rather than seek to restrict their access to justice in this way.”

Qamar Anwar, managing director of First4Lawyers, the legal marketing collective for personal injury and clinical negligence claims, disputed the UK government’s insistence that legal costs have to be tackled after significant increases: “It is true that legal costs have risen in recent years. However, this is only in line with the overall increase in all costs associated with medical negligence claims. Furthermore, NHS Resolution’s accounts for the year 2020/2021 show, in fact, that while its own legal costs went up, those of the claimants came down.”

“The government should focus on finding out what is causing negligence in the first place rather than attacking the system that supports innocent victims when things go wrong.”