NHS LITIGATION AUTHORITY: STILL DRIVING UP COSTS
Should all clinical negligence defence work now be done only on a Conditional Fee Basis?
Here is the link to the NHS Litigation Authority Annual Report to Parliament and Accounts 2015/16,
I am happy to report that it does not contain the lies and fabrications and misleading statements contained in previous reports – see my blogs:-
However a more careful examination of the figures contained in the report concerning challenges to claimant solicitors’ costs, together with an examination of recent decisions of the courts, shows that while the conduct of those writing the NHSLA Annual Report has indeed improved the NHSLA’s “entirely unacceptable” conduct of cases has not. That quote is from a judgment, not me, by the way.
Most lawyers learn early on not to make boasts about, or issue press releases about, their fantastic success in a case where that decision is subject to appeal.
At page 32 of the report the NHSLA does just that in relation to switching cases from Legal Aid to Conditional Fee Agreements shortly prior to the abolition of recoverability of additional liabilities in relation to conditional fee agreements entered in to on or after 1 April 2013.
The specific case mentioned is Yesil v Doncaster & Bassetlaw Hospitals NHS Foundation Trust (unreported), 24 February 2016, (Kingston-Upon-Hull District Registry).
In its write-up the NHSLA refers to it as being “one of five cases where we successfully challenged the transfer of funding.” … “The five cases combined have seen a total of £750,000 taken off claimants’ legal bills.”
Or maybe not.
That ruling was overturned by the High Court in Surrey v Barnet and Chase Farm Hospitals NHS Trust  EWHC 1598 (QB) (1 July 2016) and other cases– see my post CONDITIONAL FEE AGREEMENTS: SWITCHING FROM LEGAL AID IS REASONABLE.
Thus far from saving anything the NHSLA has incurred very significant costs in taking this point on these cases and losing. It was ordered to pay the claimant’s solicitors costs in each case and thus has now to pay the £750,000.00 apparently taken off the bills, together with the costs of all those proceedings and its own legal costs.
The report itself contains further evidence that the NHSLA’s attitude towards costs, and its hard line generally, is costing, not saving, the NHSLA money.
On page 31 it states as follows:-
We continue to target overcharging by claimant law firms, challenge bills and points of principle at court, and report poor practice to the Solicitors Regulation Authority as appropriate.”
Yet on the same page the report shows that the average claimant legal costs as a percentage of the total claim value, where damages are below £100,000.00, rose from 51.88% in 2014/15 to 54.83% in 2015/16.
Thus it is clear that whatever the NHSLA is doing is achieving nothing whatsoever except increasing claimant solicitor bills, and obviously its own costs, with these unsuccessful challenges.
For reasons set out above in relation to the court’s finding in switching from legal aid to Conditional Fee Agreements, one can expect next year’s figures to be much worse for the NHSLA.
Further evidence of the unacceptable attitude of the NHSLA and its lawyers to the whole legal process is shown in the case of Nicole Chapman v Tameside Hospital NHS Foundation Trust, Bolton County Court, 15 June 2016, Case number B74YM281 which I deal with in my blog
There the defendant NHS Foundation Trust was ordered to pay the claimant’s costs where the claimant discontinued shortly before trial following disclosure by the defendant of documents which it should have disclosed during the portal process.
The court described the defendant’s conduct as “entirely unacceptable” and was critical of the National Health Service Litigation Authority saying:-
“15. The Defendant’s behaviour in the conduct of this litigation was entirely unacceptable. It’s exactly the type of conduct which Part 44.2 is designed to address. Under the modern costs provisions, of course, the costs sanctions become increasingly important. The Claimant’s solicitors are pursuing these matters, PI claims, and at the end of the claim are recovering costs which are fixed and which are not by any stretch of the imagination, generous. There is a danger of — I am not saying it has happened in this case — this is a pure inadequacy of approach by the Litigation Authority and the Trust, but there is a danger that defendants and their representatives will cause difficulties in the course of litigation, so as to run up the work which claimant’s solicitors are having to do in the knowledge that those solicitors cannot recover costs reflecting that work. And of course, it always has to be borne in mind the provisions of CPR 1.3, that the parties to litigation have an obligation to assist the Court to further the overriding objective. The overriding objective firstly being to try and avoid costs and the issue of proceedings if at all possible, which is the whole purpose of the pre-action protocol, of course and secondly, when such claims are brought that they be dealt with in an efficient manner, in a proper manner so as to avoid excessive costs, involving public resources, delay and so on.”
I refer to the NHSLA running up costs, but of course it is a publicly funded body and therefore what the people running the NHSLA and its lawyers are doing is to use our money to bring challenges against us which fail and which we then have to pay for.
Those defence firms working for the NHSLA are publicly funded. It is the last remnant of legal aid in personal injury work and how ironic that the NHSLA gets legal aid whereas the people suing the National Health Service no longer get legal aid. How ironic too that the courts have found it reasonable for claimants to switch from legal aid to Conditional Fee Agreements.
I propose a change in the law whereby all clinical negligence defence work can only be done on a no win no fee basis so that no public money whatsoever is spent on unmeritorious conduct by the NHSLA and its panel of solicitors.