The Government have announced proposals to impose a cap on recoverable costs in Clinical Negligence cases, and ran a consultation until May 1st. James Thompson is a Solicitor in our Clinical Negligence department and here, he looks at the possible implications.

What are the proposals?

Currently, if a healthcare provider such as the NHS loses a clinical negligence case, they are liable for two payments: the damages awarded to the claimant and the costs incurred by the claimant’s solicitors.

The Department of Health (DoH) are proposing that a cap should be introduced in relation to the legal costs. In the consultation, it details how it favours capping legal costs in cases worth less than £25,000.

What are the potential consequences if these changes go ahead?

This would not be the first time that funding for clinical negligence matters has been subject to radical changes. Legislation introduced in 2012 removed most cases from the scope of Legal Aid.

In a recent blog post, the CEO of the charity Action Against Medical Accidents points out that the planned caps are very low. Peter Walsh predicts that solicitors will be left with little choice but to recover any deficit in their fees from a claimant’s damages:

“In reality, admissions of liability or wins often only come after the case has been fought by for a substantial period, resulting in significant legal costs. Under the proposed changes, the consequences of the Department of Health’s& GPs culture of delay, deny and defend will mean that in addition to having injured or killed a patient not all of the costs could be recovered and they will be left with paying the shortfall.”

The DoH’s own impact assessment states that ‘in terms of benefits, we expect there to be savings for both public and private sector defendants i.e. the insurers.’ The fact that this is highlighted in this way may well call into question the motivation behind the reforms.