The costs of a clinical negligence claim can vary considerably depending on the complexity of the case, the evidence required and whether the claim settles or proceeds to court. Unlike a straightforward personal injury claim, clinical negligence cases often require detailed medical evidence and specialist experts to establish whether there was a breach of the duty of care and whether that breach caused the injury or loss claimed.

For solicitors handling a clinical negligence claim, understanding how legal costs are incurred and recovered is therefore an important part of managing the case. The costs may include solicitor time, expert reports, medical records, court fees and other disbursements, with the amount that can ultimately be recovered depending on the applicable costs regime.

 

What Costs Are Involved in a Clinical Negligence Claim?

The total cost of a clinical negligence claim is usually made up of several different elements. These can arise throughout the investigation, pre-action process and, where necessary, court proceedings.

Common costs include:

• Solicitor’s fees: The time spent investigating the claim, reviewing medical records, advising the client, corresponding with the defendant and preparing the case.
• Expert reports: Independent medical experts may be required to establish breach of duty and causation and to address the extent of the claimant’s injuries.
• Medical records: Obtaining and reviewing the claimant’s medical records can be an important part of establishing what treatment was provided and whether the appropriate standard of care was followed.
• Counsel’s fees: In more complex clinical disputes, specialist counsel may be instructed to advise or represent the claimant.
• Court fees: If proceedings are necessary, court fees and other litigation expenses may form part of the overall costs.
• Other disbursements: Depending on the circumstances, there may be additional expenses associated with obtaining evidence, specialist reports or other services required to progress the claim.

The costs incurred will depend heavily on the circumstances of the individual clinical negligence claim. A straightforward lower-value matter may require considerably less work than a complex claim involving multiple experts, serious injury or disputed causation.

 

How Are Solicitors’ Costs Calculated?

 A solicitor’s costs may be calculated according to the terms of the client’s funding or fee agreement. Depending on the circumstances, this might include a conditional fee agreement, legal expenses insurance or another funding arrangement.

The solicitor’s own charges are not necessarily the same as the amount that can be recovered from the defendant. This distinction is particularly important in clinical negligence claims. The costs incurred in investigating and pursuing a case may exceed the amount ultimately recoverable from the defendant, depending on the applicable costs regime and the outcome of the claim.

Where costs are recoverable from the defendant, the receiving party may still need to demonstrate that the costs claimed were incurred and are reasonable in amount. Costs can therefore become an issue in their own right, particularly where a defendant disputes the levels of costs claimed.

 

What Is the Role of the Pre-Action Protocol?

Clinical negligence claims in England and Wales are generally subject to the Pre-Action Protocol for the Resolution of Clinical Disputes. The Protocol is intended to provide a structured process for investigating and attempting to resolve clinical disputes before court proceedings are issued. It applies to claims involving alleged clinical negligence against healthcare providers, including hospitals, GPs and dentists, whether NHS or private.

The Protocol requires the parties to exchange information and sets out expectations concerning matters such as medical records, letters of claim and response, expert evidence and attempts to resolve the dispute. It also aims to reduce delay and ensure that costs remain proportionate.

Pre-action work can therefore represent a significant proportion of the overall costs of a clinical negligence claim. However, parties are expected to take reasonable and proportionate steps rather than using the Protocol to incur unnecessary costs. The court can take non-compliance with a Pre-Action Protocol into account when deciding costs.

 

Do Fixed Recoverable Costs Apply to Clinical Negligence Claims?

Fixed recoverable costs now have an important role in lower-value clinical negligence claims. The Lower Damages Clinical Negligence Fixed Recoverable Costs scheme covers claims with a value at settlement or judgment between £1,501 and £25,000. The scheme was developed to provide a more proportionate costs framework for lower-value claims.

This does not mean that every clinical negligence claim is subject to fixed recoverable costs. The relevant scheme only applies to claims falling within its scope, and certain claims can be excluded because of their complexity or other specified circumstances.

Where the fixed recoverable costs regime applies, the amount of legal costs that can be recovered from the defendant is determined by the applicable rules rather than simply by the amount of time the solicitor has spent on the claim.

This distinction is particularly important for lower-value claims, where legal costs can otherwise become disproportionate to the amount of clinical negligence compensation being recovered.

 

What Happens With Expert Reports and Other Disbursements?

Expert evidence is often central to a clinical negligence claim because a claimant generally needs appropriate medical evidence to establish issues such as breach of duty, causation and the extent of the injury.

The cost of expert reports can therefore be significant, particularly where more than one medical discipline is involved. A claim might require evidence from a surgeon, physician, GP, psychiatrist or another specialist depending on the treatment and injury involved.

Under the Lower Damages Clinical Negligence Fixed Recoverable Costs scheme, the government confirmed that expert report fees and associated expert costs are separately recoverable, rather than simply being absorbed into the fixed costs.

The treatment of other disbursements depends on the applicable rules and the circumstances of the claim. Solicitors should therefore identify anticipated disbursements at an early stage and consider whether and how they will be recoverable.

 

How Do Costs Differ in Larger Clinical Negligence Claims?

Claims falling outside the Lower Damages Clinical Negligence Fixed Recoverable Costs scheme can involve a very different approach to costs. Higher-value or more complex clinical negligence claims may require extensive investigation, multiple experts and significant preparation before settlement or trial.

The costs of these cases will depend on the work reasonably required to investigate and pursue the claim. Issues such as the number of defendants, the complexity of the medical evidence, the value of the claim and whether liability or causation is disputed can all have an impact.

Where a claim is brought against an NHS Trust, NHS Resolution may be involved in managing the defendant’s response and costs position. However, the principles concerning recoverability and assessment still need to be considered carefully throughout the claim.

 

Can Clinical Negligence Costs Be Recovered From the Defendant?

Where a claimant succeeds in a clinical negligence claim, the defendant will usually be required to pay the claimant’s recoverable legal costs in addition to the compensation awarded, subject to the applicable costs rules and any order made by the court.

The amount recoverable may not, however, be identical to the solicitor’s total bill. The parties may negotiate the amount of costs, or the costs may be assessed where agreement cannot be reached.

This is particularly important in complex clinical negligence claims because a solicitor may have incurred substantial costs investigating the claim, obtaining expert evidence and preparing proceedings. The fact that the claimant has succeeded does not automatically mean that every item of costs incurred will be recoverable.

 

What Happens to Costs if a Clinical Negligence Claim Settles?

Many clinical negligence claims settle without reaching a final trial. Where the parties reach a settlement, the agreement should address the position regarding legal costs as well as the compensation payable.

The costs position may be agreed between the parties, or the court may need to determine the amount recoverable if agreement cannot be reached. The timing and terms of settlement can therefore have an important impact on the eventual costs position.

Solicitors should consider costs alongside the value of the claim throughout negotiations rather than treating them as an issue to be resolved after liability and compensation have been agreed.

 

What Should Solicitors Consider When Calculating Clinical Negligence Costs?

Clinical negligence work can involve considerable expenditure before it becomes clear whether a claim will succeed. Careful costs management is therefore particularly important.

Solicitors should consider:

• The value and complexity of the claim: The anticipated value can affect the applicable costs regime and whether fixed recoverable costs are relevant.
• The evidence required: Medical records and expert reports can represent a substantial part of the overall expenditure, particularly where breach of duty or causation is disputed.
• Funding arrangements: The client’s fee agreement should be considered alongside the costs that are likely to be recoverable from the defendant.
• Proportionality: Pre-action investigations and expert evidence should be reasonable and proportionate to the issues and value of the claim.
• Potential recovery: The costs incurred should be monitored against the amount likely to be recoverable so that unexpected costs exposure can be identified early.

Taking specialist costs advice can be particularly valuable where the case involves substantial expert expenditure, a disputed costs budget or uncertainty about which costs regime applies.

 

Frequently Asked Questions

How much do legal costs usually amount to in a clinical negligence claim?

There is no single standard cost for a clinical negligence claim. The amount depends on factors including the value and complexity of the case, the evidence required, the number of experts involved and whether the claim settles or proceeds to trial. The applicable costs regime will also affect how much can be recovered from the defendant.

Are clinical negligence claims subject to fixed recoverable costs?

Some lower-value clinical negligence claims are subject to a fixed recoverable costs scheme. The Lower Damages Clinical Negligence Fixed Recoverable Costs scheme applies to claims within the relevant value range of £1,501 to £25,000, subject to its scope and exclusions. Higher-value or excluded claims are dealt with under different costs rules.

Are expert reports recoverable in clinical negligence claims?

Expert reports are an important part of many clinical negligence cases, particularly where expert evidence is required to establish breach of duty and causation. Under the lower-damages fixed recoverable costs scheme, expert report fees and associated expert costs are separately recoverable in accordance with the applicable rules.

Does the defendant pay legal costs in a successful medical negligence claim?

A successful claimant will generally seek recovery of their recoverable legal costs from the defendant in addition to their clinical negligence compensation. However, the amount recovered may differ from the solicitor’s total charges and can be subject to negotiation or assessment.

How can a solicitor estimate the costs of a clinical negligence claim?

A solicitor can estimate costs by considering the likely work required, the value and complexity of the claim, the expert evidence needed, anticipated disbursements and the costs regime that applies. Costs should then be monitored throughout the case, particularly where the investigation becomes more extensive than initially anticipated.

 

How Can Greener Costs Assist With Clinical Negligence Costs?

Greener Costs provides specialist costs advice to solicitors dealing with clinical negligence claims, from reviewing costs and disbursements to advising on recovery and assessment.

Clinical negligence cases can involve substantial expert evidence and complex costs considerations, particularly where liability, causation or the value of the claim is disputed. Obtaining specialist costs advice can help solicitors understand the likely recoverability of costs and manage potential exposure throughout the claim.

Contact Greener Costs on 01204 263047 or info@greenercosts.co.uk to discuss how our costs specialists can assist with your clinical negligence matter.