Latest news
News and Events

Clinical Negligence in the Post Jackson era

  • Posted

We find ourselves almost 15 months into the 'New Regime' and the common question which we hear is 'what is your experience of...’. The honest answer is that Paragon have had a number of different outcomes as a result of the changes brought into force in April 2013 and the decisions of the Court, as well as the approach of the parties, appear to vary wildly. Therefore, when I was invited by a client to attend the SCIL (Society of Clinical Injury Lawyers) Costs Conference I jumped at the chance to hear the experiences of others in the field.

Discussions took place around the hourly rates solicitors are seeking (and recovering) as well as the insight into the hotly awaited new guideline rates. As many of you will know, the Guideline rates are set to change soon and it is broadly understood that there will be three bands – City, Central London and then elsewhere in the UK. i.e there will be no regional variation. It is also anticipated that some of the rates solicitors currently use may go down, in particular the Grade D rate. The general consensus of the debating group was that this would give Judge’s greater discretion to award rates which depart from the Guidelines with reference to regional costs.

Delegates in attendance alluded to regular recovery of rates for Clinical Negligence in the region of £300 - £350 for Grade A fee earners being recovered. It was also noted that those who have presented lower value cases for Provisional Assessment are also recovering higher than Guideline Rates. An example given was £250 per hour for a £50,000 still birth case.

Further discussions took place around the impact that the new proportionality rule has had. There was no clear outcome on this and stories varied from costs being capped at damages to it having little or no greater impact that prior to the reforms. Paragon Costs’ own experiences have certainly varied from Court to Court and from Judge to Judge. In particular the approach taken to proportionality on Costs Budgets at CMCs has been almost a minefield.

It was noted by a number of delegates that Master Cook in the SCCO when dealing with Costs Budgets will not consider hourly rates or hear arguments on that, nor will he go into the details of Expert’s fees; he also takes the approach of adding the Budgeting fees on at the end and avers that they should not be included in the Budget. It was noted by delegates that Clinical Negligence cases are often ‘front loaded’ and so far, it seems that the Court have been sympathetic to this and have not made any damaging comments on high levels of incurred costs.

In line with the new robust approach all round the group discussed requests for Payments on Account of Costs. It was agreed that generally the solicitor with conduct should be incorporating this into the Final Order. However, where a case reached the Costs Lawyer and this has not happened, the general consensus was that an Application for an Interim Costs Certificate was reasonable once the Bill and PODs have been served and the Court has seen them with the Request for DAH. This means that a reasonable view can be formed as to a reasonable sum on account. This has certainly been Paragon Costs’ approach and a more robust approach being taken in this regard generally.

Paragon Costs have always taken a strong stance on the success fees recoverable in Clinical Negligence matters due to their inherently contentious and complex nature. The discussions between delegates at the conference indicated views consistent with those of Paragon, namely that success fees of 75-100% are regularly being recovered in Courts throughout the UK.

All in all the conference was an excellent opportunity to exchange views and experiences and discover that widely ranging outcomes are being encountered throughout the UK. Paragon Costs Solutions pride themselves on being experts in the field costs in Clinical Negligence cases. Should you have any questions or matters you wish to discuss please do not hesitate to contact me, Claire Tomlin, on 0117 930 9529 or