23 March, 2009
Filed UnderLegal CostsAlthough The Legal Costs Blog is unashamedly defendant biased, and always ready to have a go at claimant lawyers, even we were somewhat taken back by the attack launched on claimant clinical negligence lawyers in yesterday's Sunday Times.
One article was headed "Lawyers use NHS as £100m cash cow" and another "Lawyers get m0re than victims in NHS compensation scandal". The leading article ran with the headline "Taking a knife to the NHS leeches". The source of this fury seems to have been The NHSLA submission to civil litigation costs review.
The NHSLA paper states that "the whole costs structure is indefensibly expensive in relation to the compensation awarded or agreed". It highlights the large discrepancies between the amounts charged by defendant and claimant lawyers in clinical negligence cases and claims that "claimant legal costs are more than double the defendant legal costs on average and that the gap ... has been widening over recent years".
The impact of CFAs is particularly criticised, with it being claimed that "they are effectively a means of claimant lawyers virtually doubling their profit costs having cherry-picked their cases". It also claims that the effect of CFAs is to produce hourly rates of potentially over £800 an hour.
The papers makes a number of proposals for reform including the introduction of routine costs capping orders and fixed staged success fees.
The NHSLA's submission paper is for the benefit of Lord Justice Jacson's ongoing review of the current costs system. It appears that it is now being generally accepted that he really has neither ruled anything in nor ruled anything out. We can now start to expect a growing number of similar submissions from various interested parties trying to influence his thinking.
The Sunday Times leading article concluded: "The NHS Litigation Authority is right. We need to reform this process and end the party for lawyers." It is fair to say that the Sunday Times is not an entirely uninterested party. The Ministry of Justice is currently engaged in the Controlling costs in defamation proceedings consultation. The press has been attempting to limit CFA funded costs in such claims and a general attack on claimant lawyers' fees will do no harm to that cause.
It might be thought that the Jackson review is coming rather late in the day. Given the damp squib that, so far as costs proposals went, emerged from the Ministry of Justice's Response on the new claims process it seemed that the current government had no real appetite for a major shake-up of the current costs system. However, the Sunday Times quoted Mark Simmonds, the shadow health minister as saying: "It is unacceptable in some cases that the legal fees are many times higher than the awarded damages". With there being every chance of a new government next year, anything now looks possible.
Just as costs draftsmen and other costs professionals were beginning to think there might be some stability emerging, it now looks as if we are in for another period of uncertainty.