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Clinical negligence claims continue to rise, thanks to “no win no fee” deals

BMJ 2010; 341 doi: https://doi.org/10.1136/bmj.c4258 (Published 05 August 2010) Cite this as: BMJ 2010;341:c4258
  1. Lynn Eaton
  1. 1London

    The “no win, no fee” legal deals could explain the continuing rise in litigation claims against the NHS, says the latest report from the NHS Litigation Authority.

    There were 6652 clinical negligence claims reported to the authority in 2009-10, representing a 10% increase on 2008-9, says Stephen Walker, the authority’s chief executive, in his annual report.

    This is the second year running that the number of claims has risen substantially. The figure for 2008-9 was an 11% increase on the claims in 2007-8. The number of claims for the previous three years had remained relatively stable.

    “We remain convinced that a major factor [in the number of claims] is the availability of the so called ‘no win no fee’ market which allows claimants to litigate without any financial risk, and which proves very lucrative for those solicitors who work on this basis,” Mr Walker said.

    Earlier this year, a report from Lord Justice Jackson on the costs of civil litigation suggested changes that might reduce such costs. The government has yet to decide on his recommendations, which included not paying the “success fee” to lawyers who win the case on behalf of the client.

    The cost of settling individual claims also continues to rise at a level way above inflation, Mr Walker warned.

    Payments for clinical negligence have nearly doubled since 2004-5, from an annual total of £329 412 000 (€397 693 829; $523 696 881) to £650 973 000 in 2009-10. And the costs of conducting litigation have become “significantly disproportionate” to the benefits in too many cases, he said.

    In 2009-10, the authority paid over £163m in total legal costs, of which over £121m (74% of total costs) was paid to claimant lawyers.

    “A City of London solicitor succeeding in a clinical negligence claim can bill at £450 per hour and seek an uplift of 100% as a success fee, whilst we can secure the very best of the defence market for £205 an hour, with no success fees,” he said.

    In March 2010 the then home secretary reduced the success fees for lawyers in libel cases from 100% to 10%.

    A spokeswoman from the Department of Health said that if mistakes were made, then patients should be compensated, and have legal representation for that.

    “There are a number of reasons costs may have increased over the past few years, such as the cost of legal fees rising at significantly above inflation and the effects of court judgments that set legal precedents on how particulars of settlements, such as the calculation of damages and future care should be assessed,” she said.

    A ministry of justice spokesperson said the government was concerned about the spiralling costs of no win no fee arrangements and was taking the proposals from Lord Jackson forward as a “matter of priority.”

    “Conditional Fee Agreements (no win no fee style arrangements) have played a role in giving access to justice to a range of people,” he said. “High costs under the existing arrangements have now become a serious concern. We will be consulting on how to achieve significant costs savings, whilst still enabling those who need access to justice to obtain it.”

    Notes

    Cite this as: BMJ 2010;341:c4258

    Footnotes

    • NHS Litigation Authority annual report 2010 is available at www.nhsla.com.

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