Cap on legal fees for clinical negligence work does not go far enough, defence organisations warn

Authors: Abi Rimmer 

Publication date:  02 Aug 2017

Proposals to limit the amount lawyers can claim in costs on medical negligence cases worth less than £25 000 (€28 000; $33 000) do not go far enough, medical defence organisations have said.

In a review of civil litigation costs,[1] Lord Justice Jackson has recommended that the Department of Health and the Civil Justice Council should set up a working party to develop a process for handling clinical negligence claims of under £25 000.

He said that the process should have a grid of fixed recoverable costs attached—a system that limits the amount lawyers can claim in legal costs—and that this would cover 63% of clinical negligence claims.

However, medical defence organisations have warned that the measure will not go far enough to reduce the burden of litigation on the NHS. In June, the Medical Protection Society warned that the cost of clinical negligence claims could rise to £2.6bn a year by 2022 in England if spending continues to increase at its current rate.[2]

Matthew Lee, professional services director at the Medical Defence Union, proposed a much higher threshold in cases that had a cap on recoverable legal fees.

“Patients who believe they have been negligently harmed must have access to justice, but fixed costs are fairer and could, and indeed should, be applied to all cases valued at up to £250 000,” he said.

In low value claims, said Lee, lawyers’ fees were on average higher than the amount of damages awarded. “If these proposals are only applied to the lowest value cases then the problem will not be fully addressed,” he said.

Lee added, “The rising tide of litigation is having a dramatic effect on the medical profession and the NHS more widely. The current system makes no sense and creates too many perverse incentives. It needs root and branch reform.”

Chris Kenny, chief executive of the Medical and Dental Defence Union of Scotland, said that the review had a very narrow perspective on the question of fixed recoverable costs in medical negligence cases and failed to engage with the wider impact that unjustified litigation had on the NHS and GPs.

“We will be happy to participate in the proposed working party, but this report underlines the need for the Department of Health to complete its more holistic and thorough review and produce more balanced and ambitious action,” said Kenny. “The Department of Health must do more than simply rubber stamp Jackson’s recommendations in this complex field.

“Today’s small step does not come close to turning around the cost and litigation tanker.”


  1. Judiciary of England and Wales. Review of civil litigation costs: supplemental report—fixed recoverable costs by the Right Honourable Lord Justice Jackson. July 2017. [Link] .
  2. Rimmer A. Clinical negligence claims could rise substantially, warns MPS. BMJ Careers 23 June 2017. [Link] .

Abi Rimmer BMJ Careers

Cite this as BMJ Careers ; doi: