Costs Budgeting in Catastrophic Clinical Negligence Claims

In recent years, much of the discussion around clinical negligence costs has focused on headline figures and policy reform. What is often overlooked, however, is the structural reality behind those figures. A relatively small number of catastrophic clinical negligence cases account for the vast majority of overall legal spend.

That imbalance has significant implications for the costs management process. In particular, it raises important questions about how costs budgeting operates in high-value claims, and whether traditional assumptions about proportionality and control remain appropriate.

Greener Costs looks at how those pressures play out in practice, with a focus on Precedent H budgeting in complex and catastrophic claims.

 

Why a Small Number of Claims Account for Most of the Cost

It is well established that the vast majority of clinical negligence cases are relatively low in value and resolve without extensive litigation. By contrast, a small cohort of catastrophic cases, often involving issues, such as birth injury or severe neurological damage, generates disproportionately high costs.

This is not simply a function of damages. Instead, it reflects the structure of those claims, which involve:

• extensive expert evidence across multiple disciplines
• long-running litigation timelines
• complex liability disputes
• detailed quantum investigations involving lifetime care needs

In these cases, costs budgeting is not a peripheral exercise. It becomes central to how the case is managed, funded, and ultimately assessed.

 

Budgeting Challenges Specific to Catastrophic and Birth Injury Claims

The preparation of a costs budget in a catastrophic clinical negligence claim presents challenges that are rarely encountered in standard personal injury and clinical negligence matters.

1.     Multiple expert disciplines

Catastrophic cases frequently require input from numerous experts, including:

• obstetrics and midwifery
• neurology and neuroradiology
• care and occupational therapy experts
• accommodation and equipment specialists

Expert fees, therefore, form a significant proportion of the overall budget. Unlike more routine claims, these costs are not easily reduced without undermining the evidential foundation of the case.

2.     Long and uncertain litigation timelines

These claims often proceed in stages, with liability determined well before quantum is fully understood. As a result, costs must be budgeted across extended periods, sometimes spanning several years.

This creates difficulty when preparing Precedent H, particularly where future phases depend on findings that have not yet been made.

3.     Front-loaded investigative work

A large volume of work is typically required before proceedings are even fully advanced. This includes obtaining medical records, instructing experts, and analysing causation.

Although some of this work may be incurred pre-action, the transition into the costs management process means that significant early expenditure must be justified within the budget framework.

4.     Resistance to high-value projections

Defendants frequently challenge substantial budgets on the basis that they appear disproportionate at an early stage. However, in catastrophic cases, lower initial assumptions often prove unrealistic.

This tension lies at the heart of many costs management hearings.

 

Costs Management Orders and Multiple Expert Disciplines

Once a costs budget is filed and served, the court will typically make a costs management order setting out the approved or agreed budget.

In catastrophic clinical negligence claims, this process is rarely straightforward.

Disputes often arise in relation to:

• the number and scope of experts
• the level of fee earner involvement required
• the appropriate hourly rates for specialist work
• the extent of future phase costs

Where budgets cannot be agreed, the court must determine what is reasonable and proportionate. However, the complexity of these cases means that rigid cost control can be difficult to apply without risking injustice.

Importantly, the court retains the ability to allow a party to depart from an agreed budget where there is good reason to do so. In catastrophic claims, developments such as new expert evidence or changes in condition may provide that justification.

 

Proportionality Arguments at Detailed Assessment

Even where a costs management order has been made, the question of proportionality does not disappear. Instead, it often re-emerges at detailed assessment.

Defendants may argue that, notwithstanding an approved budget, the final costs claimed are disproportionate to the value or complexity of the case. This is particularly relevant in claims where liability is conceded relatively early, but costs continue to accrue.

Claimants, on the other hand, will typically emphasise:

• the necessity of extensive expert evidence
• the importance of properly investigating long-term care needs
• the risks inherent in catastrophic injury litigation

The interaction between budgeting and detailed assessment, therefore, becomes critical. While an agreed budget provides a framework, it does not guarantee full recovery.

 

The Limits of Traditional Proportionality in Catastrophic Claims

One of the underlying issues in these cases is whether conventional proportionality principles can be applied in a meaningful way.

Catastrophic clinical negligence claims often involve:

• life-changing injuries
• substantial future losses
• complex medical and care evidence

In that context, a strict comparison between costs and damages can be misleading. The work required to properly advance the claim is inherently intensive, and attempts to impose standardised cost limits may not reflect that reality.

This is why the courts have, in practice, shown some flexibility, recognising that higher costs may be justified where the issues demand it.

 

FAQs

What is a costs budget in a clinical negligence claim?
A costs budget (Precedent H) sets out a party’s estimated legal costs for each stage of the litigation. It forms part of the costs management process and may be approved by the court.

Do costs budgets apply to all clinical negligence cases?
No. Costs budgeting generally applies to multi-track claims, particularly those of higher value and complexity. Many lower-value claims fall outside this framework or are subject to different regimes.

Can a party exceed its approved budget?
Only where there is a good reason to depart from the approved or agreed budget, this is often a point of dispute at detailed assessment.

Why are expert fees so high in catastrophic cases?
Because multiple expert disciplines are required to address liability, causation, and long-term care needs. These experts are essential to properly advancing the claim.

 

How Greener Costs Can Help

At Greener Costs, we specialise in the preparation, negotiation, and defence of costs budgets in complex litigation, including catastrophic clinical negligence claims.

We understand the practical challenges involved in presenting a realistic and defensible budget – particularly in cases where a small number of claims drive a disproportionate share of total costs.

Whether you are seeking to prepare a Precedent H, challenge an opponent’s assumptions, or navigate the detailed assessment process, we can connect you with experienced costs professionals who understand the demands of high-value clinical negligence litigation.

If you’d like to discuss costs budgeting or proportionality in a clinical negligence claim, contact Greener Costs today on 01204 263047 or email info@greenercosts.co.uk.