Legal Cost Specialists

Clinical negligence and Jackson

By on Feb 17, 2011 | 4 comments

Last week’s Law Society Gazette had an article on the implications of the Jackson proposals for clinical negligence claims.

The proposal to end recoverability of success fees was criticised. The thrust of the objection was that “the proposal will not reduce costs but instead move a significant part of them from a guilty defendant to an innocent claimant”.

Clinical negligence claims against the NHS fall into one of two categories:

  • Those where the NHS has been negligent.
  • Those where the NHS has not been negligent.

The system of recoverable success fees means that the NHSLA pays for the cost of claims being brought against it where the NHS has not been negligent. This happens through the mechanism of having to pay success fees in cases where it has been negligent; the success fee being designed to compensate the solicitor for those cases that are lost.

The criticism levelled in the article, and raised on numerous other occasions during the Jackson debate, is that ending recoverable success fees will mean that claimants have to pay success fees out of their damages and will thus be under-compensated.

Surely there is no need for claimants to have to pay success fees at all. Claimant solicitors should simply stop bringing claims against the NHS when the NHS has not been negligent. That way there will be no unsuccessful claims. The article was happy to point out that savings could be brought to the current system if the NHSLA admitted liability more quickly when there had been negligence. Given how easy it apparently is to distinguish between a good case and a bad case, claimant solicitors should stop bringing the bad ones. With 100% success rates there will be no need for success fees to be charged and claimants can keep 100% of their damages.

Everything in life becomes simple once the problem is looked at properly.

    4 Comments

  1. If only life were so simple. In a perfect world, the above would work. But what about those cases where the NHS got it wrong but were not negligently wrong. Between your black and white is a whole spectrum of greys of varying shades and difficulties proving one way or the other.

    Graham

    17th February 2011

  2. It should be perfectly possible for claimant clinical negligence solicitors to tell the difference. How else do they justify their enormous hourly rates?

    Simon Gibbs

    17th February 2011

  3. And so begins the argument over whether they were negligently wrong or just wrong with the outcome depending on evidence, arguments and persuasion for which lawyers and experts are paid

    Graham

    17th February 2011

  4. Graham mentions the perfect world but:

    If solicitors stopped bringing claims when the NHS was not negligent and the NHS ceased acting negligently, substantial cost savings would be made and everyone apart from the lawyers and those benefiting from the transaction cost of litigation would benefit!!

    Your point of view as to what is a personal solution depends where you stand. Shame we can’t all share one beauty spot!

    Mal

    17th February 2011

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  1. What do success fees pay for? | - [...] other day I posted a somewhat tongue-in-cheek comment about how the need for success fees could be avoided if…

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