Kerry Underwood

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NHS Litigation Authority: Has it misled Parliament?

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“30% rise in negligence claims against NHS” screams the Daily Telegraph headline of 5 August 2011, typical of others.

No such increase ever occurred as I will demonstrate below, so where did this figure come from?

In its report to Parliament 2010-2011 the Chief Executive, Steve Walker, a Civil Servant, leaps straight in to the political arena:

“We are delighted that the Ministry of Justice is taking forward the recommendations made by Lord Justice Jackson regarding the costs of civil litigation.  We believe very strongly that a regime which allows success fees and the recoverability of After-the-Event (ATE) insurance premiums makes litigation so profitable that solicitors and so-called “claims farmers” are drawn into the market thereby fuelling the rise in claims volumes we have experienced.

After large increases in previous years we saw new claims volumes for newly reported clinical claims rise by around 30% in 2010-2011 and by around 6% for non-clinical”.

The truth is very different.

Conditional fee agreements were first allowed on 5 July 1995.  According to the NHSLA’s own figures the number of claims notified in 1997/1998, when conditional fee agreements were first becoming popular in clinical negligence claims, was 6,711.  By 2009/2010 the number had fallen to 6,652.

Recoverability of success fees and ATE insurance premia came in on 1 April 2000, apparently causing the explosion in claims.  Yet the 2007 NHSLA report said “the number of matters we receive has remained remarkably steady over recent years.  This year there was a small decrease in the number of clinical matters in 2006/2007 over 2005/2006″.

The 2008 report said: “The number of claims we receive has continued to remain remarkably steady over recent years.  This year, there was an increase of less than 1% in the number of clinical claims reported”.

Between 2008 and 2009 there was an increase in clinical claims of 11.30% from 5,470 to 6,088 and between 2009 and 2010 a further increase of 9.26% from 6,088 to 6,652.

The pattern of non-clinical claims very closely follows that of clinical claims, and the percentage rises in such claims between 2007-2008 and 2008-2009 was 10.74%, up from 3,380 to 3,743 and between 2008-2009 to 2009-2010 was 8.84% up from 3,743 to 4,074.  Previous years show a similar close correspondence.


Between 2009-2010 and 2010-2011 non-clinical claims rose from 4,074 to 4,346, an increase of 6.68%.

Another measure of activity is the figure of claims open at the year end.  A big surge in new claims will result in an even bigger rise in figures because it will be the older, lower, number of claims falling out whereas the new ones are all still in.  On this measure non-clinical claims showed a 7.52% rise between 2009-2010 and 2010-2011 and clinical claims showed a rise of 7.51%.

So for 2010-2011 on three measures we have rises of 6.67%, 7.52% and 7.51%.

Yet clinical claims jumped from 6,652 to 8,655, an astonishing increase of 30.1%.

Very obviously this rise has nothing to do with conditional fees or recoverability of success fees and ATE as conditional fees had been in for 15 years and recoverability for 10 years, and as we have seen claims sometimes fell during the years of recoverability.

So what DOES explain it?

Nothing, because there was no such increase.

On page 12 of the report, under “Claims Received” it says:

“Formal clinical claims received under CNST [Clinical Negligence Scheme for Trusts] saw an increase of 31.6% on 2009/2010 and non-clinical claims under LTPS [Liabilities to Third Parties Scheme] rose by 7.8%.  Part of the significant increase in claims under CNST may be explained to some extent by the requirement for claimants to now send us a copy of the Letter of Claim at the same time as it is sent to the defendant NHS body, at which point we now record the claim, but we are analysing patterns and trends to obtain a better understanding of the reasons behind the increase” (My emphasis).

Thus the headline-grabbing 30% increase is pure fiction and is obviously and readily explained by a change in reporting methods.

Why did Mr Walker not mention this?  Why make the politically charged, and wholly inaccurate, link between “large increases” and recoverability of success fees and After-the-Event insurance premia?

Of course next year, based on this year’s higher figure and using the same, new, recording procedure the percentage increase will revert to a true figure, so it is just this one year when the percentage increase is distorted upwards.

Am I being too cynical in thinking that it suited the NHSLA to present the report to Parliament in this way this year just as Parliament is considering the abolition of recoverability?

As Disraeli said “There are lies, damned lies and statistics”.

Welcome to my first blog aged 55 and a quarter

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Shakespeare wrote:

“The first thing we do, let’s kill all the lawyers” (Henry The Sixth, Part 2 Act 4).

As this play is as readable as a commercial lease or European Court of Justice judgment I am surprised anyone ever made it to Part 2.

Soon you may all find out if the Bored of Stratford was right as from 6 October the Government aims to kill the legal profession by allowing non-lawyers to practise law.

This has all-party support – it was the Labour Government that introduced the Legal Services Act 2007 and it is being implemented by a Conservative-Liberal coalition.

I suppose this will ease unemployment among the jobless phone-hackers and police bunga bungas but hey, maybe it is time for a bit MORE regulation of lawyers, police, politicians and the press, not less.

So, and you heard it here first, Law Abroad plc and Underwoods Solicitors are remaining just that – solicitors.  No Alternative Business Structure for us.  After all the legal profession, and its offspring the judiciary, are about the only parts of the British Constitution not subsumed in scandal.


This is the way the world ends

Not with a bang but a whimper

(T S Eliot: The Hollow Men)

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