Kerry Underwood


with 4 comments



In its Annual Report to Parliament, published by the House of Commons on 16 July 2015 the National Health Service Litigation Authority has its annual whinge about lawyers acting for claimants that the NHS has negligently killed or injured.


In 2013/14 there were 174,872 written complaints to the Health Service Ombudsman. I must have carelessly overlooked this in the NHSLA’s report to Parliament – surely they would not have left this out.


The report of the Parliamentary and Health Service Ombudsman dated 22 September 2015 showed that in relation to acute trusts complaints rose to 21,370 as compared to 18,870 in the previous year, that is a rise of 13.25%.

The NHSLA report states that claimant costs for lower value claims are disproportionate and excessive but boasts of the number of matters it has taken to Detailed Assessment.


It says:-


“The reality is that we can exert only limited control over a claimant’s legal costs and no control at all where those costs are incurred before the claim is even reported to the NHSLA.”


That gives the clear impression that claimants’ solicitors can charge what they want, without any checks.


The truth is that the NHSLA can have every single bill assessed by the court. Why it does not do so and thus allow the court to control the costs, which is the function of the court and not that of the claimant or the NHSLA ,will become apparent when you see what the courts have had to say recently about the conduct of the NHSLA.


The NHSLA cannot really believe that costs judges are routinely allowing excessive and disproportionate costs. Is this not another political move by a politically motivated body to skew the data ahead of Parliament’s consideration of fixed costs in clinical negligence cases?


The NHS LA has a history of this and presented similarly misleading data when the abolition of recoverability of success fees and ATE premiums was being considered by Parliament.


Its statement on page 20, that I have just quoted, is hardly consistent with its statement on page 6:-


“This year we contested a high number of cases to trial and challenged numerous claims for claimant costs at detailed assessment, achieving significant savings for our members.”


Maybe. Nuffield Foundation Research published on 13 January 2016 shows that between 2001 and 2009 the proportion of successful claims against the NHSLA, or its “members” jumped from 45% to 70%, although it does state that the increase may now have stopped, or even been reversed.


The courts have been less happy with this “fight at all costs” tactic and twice in the last two months have taken the rare step of awarding indemnity costs against the NHSLA for its conduct of litigation, specifically its failure to mediate. In an age of budgeting and proportionality indemnity costs are very much higher than standard costs so that policy is costing, not saving, the NHSLA – you and me as it is taxpayer funded – money.


The language and tone is Orwellian. It cannot force itself to say that the number of claims has dropped – by 3.76% from 11,945 to 11,497 in the last year, but rather says:-


“We received 11,497 new clinical negligence claims in 2014/15 demonstrating a sustained high level of new claims.”


It refers to a “slowdown in growth”. No, a drop in the number of claims is not “a slowdown in growth”. It is a drop.


The rise in the percentage of successful cases appears in the Nuffield research and not in the NHSLA report. The Nuffield research states that the increase in success rates is “possibly because “No Win No Fee” lawyers are more cautious about taking on risky claims than the Legal Service Commission (formerly responsible for administering legal aid). “


Pretty obvious really.


In The Year in Summary on page 14 there is a pretty little wheel – figure 13 –


“Damages and costs saved in clinical negligence claims resolved in 2014/15”


And this includes subsections as follows:-


  • Successfully defended at trial
  • Resolved without damages payable
  • Legal costs challenged and saved.

Of the £ 1.32 billion apparently “saved” just £ 38.6 million, that is 3.74% including damages is “saved” by going to trial.


Curiously no wheel appears showing the massive costs incurred unnecessarily by the NHSLA as a result of the incompetent, aggressive and unreasonable defence of its claims. I bet it comfortably exceeds the £38.6 million, which of course includes damages, allegedly saved.


On page 8 the report lists eight factors as “drivers” of the costs of claims. (See below)


However a look at figure 1, not mentioned in the eight drivers, shows that claims received as a percentage of NHS activity have dropped sharply, suggesting that lawyers are correctly identifying the cases which should be brought, as evidenced by the jump in the percentage of successful cases.


Thus the true picture is that claims against the NHS are falling, that a greater percentage of those brought are successful and that claims lodged as a percentage of the NHS activity have dropped sharply.


Thus if there are any concerns then those concerns are that due to the abolition of legal aid, except in very limited circumstances, in relation to clinical negligence and the huge hike in court fees genuinely injured claimants are unable to pursue claims.


The NHSLA’s statement on page 19:-


“We have always sought to resolve claims without litigation, and we continue to use a range of alternative dispute resolution options in appropriate cases, including formal mediation.”


will make any clinical negligence lawyers laugh out loud, or weep, or both.


Pages 25 to 27 have some selected, favourable, quotes from judgments in the NHSLA’s favour. Here are some from this year which I am not expecting to be in next year’s report to Parliament:-


“9. In respect of the defendant’s failure to mediate, I think the only sanctions available for me to impose are to award costs on the indemnity basis and to award interest on those costs from a date earlier than today, today being the normal date. I am persuaded that the defendant’s refusal to mediate in this case was unreasonable. It took them six weeks to reply to the offer and they then replied in the negative…



  1. If the party unwilling to mediate is the losing party, the normal sanction is an order to pay the winner’s costs on the indemnity basis, and that means that they will have to pay their opponent’s costs even if those costs are not proportionate to what was at stake. This penalty is imposed because a court wants to show its disapproval of their conduct. I do disapprove of this defendant’s conduct but only as from the date they are likely to have received the July offer to mediate.”


Reid v Buckinghamshire Healthcare NHS Trust [2015] EWHC B21 (Costs) 28 October 2015


In Bristow v The Princess Alexander Hospital NHS Trust [2015] EWHC B22 (Costs)



the NHSLA was ordered to pay indemnity costs for the entire costs proceedings following its rejection of an offer to mediate the costs of a dispute.


Master Simon said that the parties “should be encouraged to enter into mediation, and if they fail to do so unreasonably then there should be a sanction… they gave no good reason other than the fact that the case had already been sat down for a Detailed Assessment”.


The case was brought by Irwin Mitchell and one of their partners, Tom Blackburn said that despite the ruling in this case and in Reid v Buckinghamshire the NHSLA had not changed its tactics


“We had this ruling at the beginning of November, and we have still not had one mediation.


Insurers have been slow on the uptake, but have accepted mediations in some cases. They care about their bottom line.”


In neither case has the NHSLA appealed.


Here are the comments from the Parliamentary and Health Service Ombudsman on 8 December 2015 which I am not expecting to see in next year’s report to Parliament either.


“Nearly three quarters of hospital investigations into complaints about avoidable harm and death claimed there were no failings in the care given, despite the Parliamentary and Health Service Ombudsman’s investigations of the same incidents uncovering serious failings.


The wide range in review of the quality of NHS investigations into complaints about avoidable harm of death by the Parliamentary and Health Service Ombudsman, found that inadequate hospital investigations are leaving distraught patients and families without answers and delaying much needed service improvement. “


The Ombudsman found that:


  • “Nearly three quarters (73%) of cases where the Parliamentary and Health Service Ombudsman found clear failings, hospitals claimed in their early investigations of the same incident that they had not found any failings.
  • Hospitals failed to class more than two thirds of avoidable harm cases as serious incidents, meaning that they were not properly investigated.
  • 19% of NHS investigations were missing crucial evidence such as medical records, statements and interviews.
  • 36% of the NHS investigations which recorded failings did not find out why they had happened, despite 91% of NHS complaint managers claiming that they are confident they could out answers. “

“Parents and families are being met with a wall of silence from the NHS when they seek answers as to why their loved one died or was harmed. “


“Our review found that NHS investigations into complaints about avoidable death and harm are simply not good enough. They are not consistent, reliable or transparent, which means that too many people are being forced to bring their complaint to us to get a result. In the period 1 January 2015 to 1 December 2015 the Parliamentary and Health Service Ombudsman investigated 536 cases about potentially avoidable deaths and upheld the complaint in relation to 264 avoidable deaths. “


The report states on the front:-


“Ordered by the House of Commons to be printed 16th July 2015”


I look forward to the day when an Act of Parliament says:-


NHS Litigation Authority


“Ordered by the House of Commons to be abolished.”




  1. An increase in the number of patients being treated by the NHS.
  2. An increase in the number of reported incidents. This may indicate an increasing and positive reporting culture and so is not necessarily reflective of an increase in incidents occurring.
  3. An increase in the number of patients claiming compensation as a proportion of reported incidents.
  4. An increase in the number of patients who claim but who do not recover compensation.
  5. An increase in the number of lower value claims.
  6. Disproportionate claimant legal costs for lower value claims.
  7. Excessive claims for legal costs from some claimant firms.
  8. Rising lump sums and annual costs (usually, for care), over and above inflation, for high value claims.

 some links






Written by kerryunderwood

January 14, 2016 at 1:02 pm

Posted in Uncategorized

4 Responses

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  1. Hi Kerry

    Excellent article.

    I have just settled a 5 year clinical negligence claim which had been set down for trial in the High Court in May 2016 with liability disputed until the end.

    I have been trying and trying and trying to get the solicitors acting for the NHS Litigation Authority to talk about settlement with absolutely no effect. The costs have of course outstripped the damages by a considerable margin.

    You are absolutely correct – politically motivated tosh.

    May I please share your post (attributing it to you of course) on social media?



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    January 14, 2016 at 5:27 pm

  2. Has anyone seen this article – see below – I cannot get a link going so you will have to cut and paste it into your search engines !!! Seems as though the Government are going to do the same with fixed costs for Clin Neg as they did with Pi and steamroller them through. There needs to be a combined response to this otherwise access to justice will disappear for everyone because without a viable lower value stream of work most firms will not be able to sustain just the higher value stuff.

    Dawn Slow
    Affinity Law

    Dawn Slow

    January 15, 2016 at 2:42 pm

    • Dawn – whatever the rights and wrongs of fixed costs in clinical negligence cases they have been on the agenda for several years. In personal injury they work well, and combined with the 25% charge to the client are more profitable than the old system, if handled properly.



      January 15, 2016 at 7:41 pm

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