Sunday, 9 October 2016


Stephen Adams’ ugly polemic in the Mail on Sunday seems to be branding all lawyers – certainly those involved in the business of suing the NHS for compensation for victims of clinical negligence - vultures. What a sweet guy.

He rants about the amounts paid in costs during the last year in relation to damages claims (excluding costs) that have trebled from £323 million to around £950 million over the last decade.

All the rhetoric aside this is fairly simple. Compensation is only paid in cases where a court decides that the NHS has been negligent and so the claimant is entitled, according to the law, to compensation or the NHS accepts that is the likely outcome and settles before trial.

So – the first fact to get on board is that all of these expenses arise because of proven or admitted blunders for which the law says the innocent victim should be compensated.

In other words – and this is the real point of concern – cock-ups are increasing at a frightening rate. No wonder where the service is so under-funded and demoralised. No consolation there for the victims of that growing number of mistakes who, our law says, should be compensated in the only way possible – by the provision of funds to alleviate their suffering.

And as for costs – guess what? Yes, they are only payable in successful cases so all the outrage is about the expense of suing the NHS to pay damages they are liable to pay for getting it wrong.

Forget the hardworking individuals in this scenario. I admire them too. This is not about caning well-meaning folk who are doing their best. It’s about recognising that because these lovely, caring people are overworked and under-resourced, other innocent citizens are being failed and in some cases very badly injured or worse.

Let’s be grown up and accept that if you mess up, you need to make amends. By the way, an apology is a cracking good start.

I expect that many sane people see that but may ask, “Yes, but what about the amount of the costs?” 

Good question.

First, there are many cases where there is no justifiable complaint about the costs incurred by the claimant’s solicitors. Remember that those sums – however much they are – form part of the total costs paid alongside damages in claims which are proven or admitted to have merit.

Secondly, there are too many cases where the people tasked with fighting these claims on behalf of the NHS lose all objectivity and pragmatism – fighting for the sake of it, where sensibly they should be conceding the claims and working with victims’ lawyers to make sure the right amount of compensation is paid.

But they don’t. As the MoS article briefly mentions, it’s a “culture of defend, deny and delay”.

So, this pushes the costs up – inevitably. There’s a good claim. Victim’s lawyers know it. What do they do? Say, “Oh, the NHS are digging in – we’ll have to give up”? Of course not.

See Kerry Underwood’s analysis earlier this year which contains links to cases where the NHSLA has been fiercely criticised by judges for its attritional approach.

At this point it’s worth repeating the unarguable message that the answer to this problem comes, to a large extent, in two simple parts:

1.       Don’t screw up (please)
2.       If you do, ‘fess up – promptly

Finally, yes there are cases where the fees claimed – even though the case succeeded – are too high. In some cases there is a genuine disagreement about what is reasonable. In others, disreputable lawyers – a minority - are claiming too much.

The easy answer is always that the court controls, by a formal process of detailed assessment the amount payable. If the NHSLA thinks the bill is too high, then it simply forces the matter before the court and if it makes sensible offer of payment along the way, it can expect to recover its costs of fighting the assessment.

Problem? There isn’t one – except the culture of cock-up, cover up and clam up.

Remember – every single payout is the product of a proven or admitted mistake.

The NHS, NHSLA and parts of the media are all sick in various ways. Lawyers fighting fairly for justice are sick of two of them.

As for Stephen Adams, he’s succumbed to the temptation for personal gain to tar all lawyers with the same brush. All generalisations are dangerous…

It would be like reading the Mail and concluding that all newspapers are full of rubbish.

No comments: