Abstract
The Master of the Rolls has asked Lord Justice Jackson to undertake a review of costs in civil litigation, and to ‘make recommendations in order to promote access to justice at proportionate cost’. The resultant report is due to be submitted in December 2009.
Claimant costs in clinical negligence litigation have been escalating well ahead of inflation for many years. This trend has recently been exacerbated by increasing numbers of cases being run under Conditional Fee (‘no-win, no-fee’) agreements (CFAs), owing to the tightening of public funding criteria by the Legal Services Commission. While it is undoubtedly the case that Claimants are entitled to good quality legal advice, which has to be paid for, hourly rates sought and frequently obtained from costs judges by Claimants' lawyers are fairly consistently about 50% more than those paid by Defendants to equivalent fee earners. That is before any CFA uplift is applied. The NHS Litigation Authority is now seeing attempts by partners in Claimant City of London practices, on 100% success fees, to claim over £700 per hour from the NHS. Such rates will be widely perceived as exorbitant.
In relatively low-value clinical negligence claims, most of which are now brought with the aid of CFAs, it is common to see the amount sought in costs by the Claimant's lawyers exceed the value of damages; sometimes by 100% or more. Proportionality has gone out of the window.
While Defence solicitors are required to improve their processes and efficiency as a consequence of competition and tendering, there is no equivalent pressure on firms instructed by Claimants.
Lord Justice Jackson's investigation is therefore to be welcomed. The present system of costs in clinical negligence litigation is seriously defective. It is fervently to be hoped that the forthcoming report will recommend major changes to make the system much fairer.