The Government’s lack of understanding about medical negligence cases is affecting its decisions on costs, a lawyer says.

The Department of Health is proposing to fix costs in cases worth below £250,000.

“While capping fees might seem like a quick win for a government intent on cutting costs, the current proposals fail to address that it is the negligent actions of the NHS that drive up the NHS’ litigation budget,” Nina Ali, an expert in clinical negligence, told The Barrister magazine.

“As they currently stand, the proposals demonstrate a lack of knowledge or understanding about how clinical negligence cases are actually run. The Government’s plan is to limit legal costs and ensure that lawyer’s fees reflect a percentage of the compensation received by a patient so that it is proportionate. They contest that there is no limit on fees at present and appear to work on the basis that all low value cases, are, by their nature, less complex and therefore less expensive to run.”

But the reality, Ms Ali said, was that low value did not always equate to low costs, with smaller cases, financially speaking, often just as complex as those with a higher yield.

A further issue, she added, was the flawed premise that lawyers could charge what they want, with courts already holding the power to reduce bills deemed to be excessive.

Exacerbating the matter is that most medical negligence cases are contested on a no win, no fee basis, along with the fact that independent, expert and multi-disciplinary evidence is often required.

“To seek to introduce further and somewhat draconian charges without waiting to see whether the introduction of costs budgeting will lead to the necessary improvement must from any angle be considered to be misguided and misconceived,” Ms Ali said.

“The danger of these proposals is that by bringing in fixed costs, lawyers will simply not be able to take on low value cases.”

The consequence, she said, was that not only would many be denied access to justice, but patient safety could not improve without litigation to drive better clinical practice.

Formal consultation on the process is due.

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