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NHSLA accused of “scaremongering” on medical negligence costs

31 March 2009

Claimant lawyers have accused the NHS Litigation Authority of “scaremongering” over costs in medical negligence cases.

In its submission to the Jackson review of civil litigation costs, leaked to The Sunday Times, the NHSLA claimed that partners at claimant firms were charging £804 per hour in conditional fee cases – four times as much as their colleagues at defendant practices.

The figure of £804 is based on the Supreme Court Costs Office guideline hourly rate for a partner in the City of London of £402, doubled to £804 if an uplift of 100 per cent is applied.

The NHSLA said claimant legal costs had risen from around £95m per annum to around £130m, more than twice the value of defence legal costs.

“It is not our case simply that the costs are too high and rising, nor that the disproportion between claimant and defendant costs is too great and widening, but, rather, that the whole costs structure is indefensibly expensive in relation to the compensation awarded or agreed,” the Authority said.

It said conditional fees were “effectively a means of claimant lawyers virtually doubling their profit costs having cherry-picked cases” and called for greater use of fixed fees and cost capping.

Jenny Kennedy, partner at London firm Anthony Gold, said most London partners were more likely to earn between £250 and £320 per hour for medical negligence cases and conditional fee uplifts were regularly cut to 60 per cent or lower.

“You always get knocked down on your charge-out rates and your uplift,” she said.

“To do the job properly you have to put the work in. It would be extremely difficult to do a decent job with a distraught, disabled client with complicated needs on a fixed fee.”

Kennedy said taking down a witness statement from a paraplegic had recently taken her four meetings and 35 hours work.

“If the NHSLA took a pragmatic approach to letters of claim and experts’ reports and gave proper instructions to their solicitors, legal costs would be much lower.”

Amanda Stevens, president of APIL, said the use of conditional fees had grown as eligibility for legal aid reduced.

However, she said there were “checks and balances all the way” on the rates claimant lawyers received for conditional fee cases.

“Recovering your costs is a separate legal battle,” she said.

She blamed the NHSLA for failing to settle cases before trial.

“In clinical negligence cases you are pushing the door of the court far more frequently than in catastrophic personal injury claims.”

She added that solicitors needed a level of seniority not always required in other areas of work to prepare cases against highly trained professionals.

“Trainees do not go into clinical negligence work to make big incomes,” she said.

In a separate development, figures from the NHSLA suggest that the use of conditional fees to fund medical negligence cases is growing sharply when compared with legal aid.

In a written parliamentary answer to a question from Conservative MP John Baron earlier this month, health minister Ann Keen said 36 per cent of cases were known to have been funded by conditional fees, compared with 23 per cent by legal aid in the last financial year.

This compares with a gap of only three per cent the previous year.

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