Kerry Underwood


with 16 comments

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 [2016] 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:-


Legal costs


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.


Written by kerryunderwood

September 6, 2016 at 9:51 am

Posted in Uncategorized

16 Responses

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  1. Hi Kerry,

    I wonder to what extent each individual trust plays its part in how the NHSLA can conduct itself and the NHSLA is merely a shelter to that? I had a cost matter recently where the NHS’ ‘dedicated’ cost draftsman was recommending settlement figures to the Trust/NHSLA but there was a flat refusal to take their own instructed teams advice resulting in an inevitable DA where the NHS’ cost draftsman already thinks they will fail. Part of the issue being the massive amount of interest they had accrued from failure to make an interim cost payment which they felt the should not have to pay. no doubt the squeeze tactic on Claimant firms cash flow.

    I can’t see how that can in any shape or for be a cost saving measure and I doubt I am the only one to experience such a situation.

    Alex Brown

    September 6, 2016 at 11:41 am

    • Alex

      Many thanks for this. The short answer is that I do not know. In fact you have three potential influences – the individual trust, the NHSLA itself and the lawyers instructed on behalf of the trust/NHSLA.

      One of the key points, which is not always to be highlighted, is that all money spent by the NHSLA in relation to legal proceedings, including obviously the money paid to its own lawyers, is public money and there is simply no transparency about the way decisions on settlement/costs etc. are made.

      I do not think that insurance companies or their solicitors generally try to run up costs or are particularly obstructive in relation to settlement in appropriate cases, but it is the universal experience of claimant clinical negligence lawyers that the NHSLA and its lawyers do just that.

      Something is wrong.



      September 7, 2016 at 9:40 am

      • Kerry,

        A lack of transparency also remains in place with regards to how much Accumention are paid as it does not seem clear to me their costs are factored into the legal costs or not. Surely a breakdown between the two branches of litigation and costs would be an interesting read.

        I am sure you and others saw Andrew Ritchie QC’s comments on last years report, and although less directly hostile to claimant lawyers this year, the reality points on costs remain between Claimant and Defendant. A link to the comments are here if anyone has not seen them:

        Alex Brown

        September 7, 2016 at 3:12 pm

      • Many thanks.


        September 7, 2016 at 3:14 pm

  2. One sided bias as usual. Defence nhsla firms work to fixed costs most of the time and at far less than claimant firms get. Do you propose no win no fee when the conduct of a claimant solicitor is found wanting? What test do you apply? You’ve also been fed half the story on chapman-I suggest you ask the person who sent you half the story why it ended up at court.


    September 6, 2016 at 12:41 pm

    • I have not been fed anything in relation to the case of Nicole Chapman v Tameside Hospital NHS Foundation Trust, Bolton County Court, 15 June 2016, Case number B74YM281.

      Rather I have read the entire judgment and there is a link to that full judgment on my blog – FIXED COSTS, PRE-ACTION CONDUCT: DEFENDANT ORDERED TO PAY DISCONTINUING CLAIMANT’S COSTS and I have set out the link again above.

      The quotes are from the judgment, as you will see if you read the full judgment.

      As you will see from the comments on the post I know nothing beyond what is contained in the judgment, as I made clear, for example in my reply:-

      “The facts that I have are as set out in the judgment which is linked to this post.”

      It is true that I thanked Emma Ireland of Scott Rees & Co for notifying me of the judgment, but all of the analysis and comments are mine, as must be apparent to anyone reading the post.

      Very much of the material that I write about is received from solicitors and barristers, both those acting for claimants and those acting for defendants, and that is enormously valuable to me and I always make a point of thanking anyone who has supplied me with judgments etc.

      I regard that as a matter of courtesy.

      You ask:-

      “Do you propose no win no fee when the conduct of a claimant solicitor is found wanting? What test do you apply?”

      Claimants work on a no win no fee basis in virtually all personal injury work and thus are in that position all of the time. If a claimant’s solicitor’s conduct is found wanting then the defendant will succeed, in appropriate cases, in obtaining a wasted costs order or a non-party costs order against that solicitor and on that subject I refer you to my very lengthy post WASTED COSTS AND NON-PARTY COSTS ORDERS: UNIFIED which sets out the law in detail, with links to the full judgments, which I suggest that you read.

      You may care to order my forthcoming book on the subject.

      You may also care to read my post – WASTED COSTS: CLAIMANT SOLICITORS AT IT which rather suggests that any bias that I have is not “one sided”.

      If all is rosy in the NHSLA defence garden then why is the NHS Litigation Authority experimenting with handling cases in-house so as to make further savings in its budget ? – see Law Society Gazette feature on Monday 5 September 2016 – NHSLA tests in-house working to cut £120m defence costs.

      You are more than welcome to send to me any judgments that you think are relevant to any of the types of issues that I write about and, if I think it is of interest, whatever side it takes, I will indeed write about it and publicly thank you in the post for bringing it to my attention.



      September 6, 2016 at 2:48 pm

      • Kerry
        When I first read your post my initial reaction was that would be very unfair on the Trusts solicitors.Then when I thought it through I came to the conclusion it was a genius idea provided that the NHSLA screened all the cases in house a bit like what we claimant solicitors do except they have the benefit of free access to in house experts.The Trust then sends the papers to their solicitors who risk assess the case and decide whether it should be defended or settled. If defended then they would enter into a no win no fee agreement and if settled they get paid on a fixed fee basis.I would suggest that their costs are related to the amount of the settlement figure. I am sure there are plenty of other scenarios that would work but they need to reward prompt settlements.


        September 6, 2016 at 3:37 pm

      • John

        Many thanks for this. You make some very good points indeed. Given that the NHSLA does indeed have access to in-house experts and of course has full records etc. of the incident that is alleged to have amounted to clinical negligence, it should always be in a much stronger position than the claimant to determine liability and therefore should be able reasonably early on to determine whether or not to defend the matter.

        That does leave the issue of quantum and obviously it is reasonable for any potential paying party to dispute quantum and the NHSLA is no different in that regard.

        However the obvious answer, as it is in all litigation, is a well-judged Part 36 offer and if the claimant fails to beat that offer then not only does the NHSLA get a costs order for the post Part 36 work, but effectively it can enforce it by way of set-off under CPR 44.12 and/or common law and thus the claimant’s Qualified One-Way Costs Shifting protection is lost.



        September 7, 2016 at 9:43 am

  3. Dear Craig, I do not know where you get your figures from. Do you not accept that given defendants even on fixed costs ( and we have seen the tariffs from a FOI request and how they are dependent upon the value e.g claims over £50,000 def paid more) get paid win or lose, there is no equal footing? Who assesses the def costs (including conduct) which are paid by the tax payer win or lose? Where is the transparency here? There is none.
    What’s more, claimants filter out a high proportion of cases thereby saving NHS / def/ tax payer money and this is not claimable. I therefore suggest that no, claimants do not have good realisation in monetary terms of the work they do overall in bringing these cases compared to defendant firms / nhsla . I am also of the view that if claimant costs including the conduct of the solicitor are assessed then so too should the defendant costs be assessed – the latter of which are paid by the taxpayer after all.


    September 7, 2016 at 8:30 am

  4. I would also like to have a FOI and analysis on the costs the NHSLA/def incur when taking applications for payment on account of costs to a hearing – for which I claimants get indemnity costs against D – again all paid by the taxpayer. This is another serious issue. This should form part of the NHSLA report.


    September 7, 2016 at 9:26 am

  5. Nhsla panel sols work on instructions. They simply make recommendations and the Trust/nhsla agree or disagree. Can’t see how the nhsla sols get penalised in such circumstances. Bizarre suggestion Kerry – surely you don’t think panel sols do as they please or their recommendations are blindly followed


    September 9, 2016 at 9:11 am

    • Brett
      It is not as simple as that. Clearly there is a culture in the NHSLA of obstruction and lack of co-operation and many think that that is because they are spending other people’s – the taxpayers’ – money. It is virtually te last remnant of publicly funded personal injury work, but there is no transparency or openness as to costs.

      The phrase about the solicitors simply making recommendations is a little Delphic. That is all any of us do- but clients virtually always accept those recommendations.

      It is not a question of solicitors being penalised; the issue is whether there can be any justification in spending public money in this way.

      Legal aid was abolished for claimants in personal injury work. Why does it remain, in this one field, for defendants ?



      September 9, 2016 at 10:13 am

    • Brett I think you are being naive. The problem is, how does one know if it is def solicitors’ conduct and/or NHSLA and/or Trust conduct when we have no transparency or assessment of their bill and conduct.

      I have a case at present where the def solicitor made 3 applications for extending directions because they were late, they wanted the ATE level 3 premium deferred which it was and then no negotiation or offer ensued. One would assume it is def solicitor conduct causing those delays in complying with directions not the Trust. The def settled it 1 week pre Trial. Why should I get offered £5,000 profit costs by Acumension due to proportionality issues on a med neg case when the Def solicitor will get paid way more than that for a 2 expert medical negligence case that settled 1 week pre Trial with no admissions and when our offer was made 2 years before?

      Why can we not see or assess the defendant’s solicitor’s bill and see if it was proportionate when it is the same person, the tax payer, footing the bill on this exact case?

      I would like to know whether the defendant solicitors get paid more of a fixed fee following joint statements and whether this is the reason why 90% of my cases settle post joint statements as opposed to pre issue, pre directions or at any stage beforehand whereby substantial costs would have been saved.

      The thing that I find hilarious is how for years claimant solicitors have had increasing complaints made about “racking up costs” in med neg cases (despite our costs being subject to detailed assessment), and yet now that we are fighting back and asking both parties’ conduct and costs to be examined and for more transparency Defendants do not like it.


      September 22, 2016 at 3:26 pm

      • Helen

        Some very good points Helen. Craig, Brett – any response?



        September 22, 2016 at 5:54 pm

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