Patient's costs

The MDU has been campaigning for fairer compensation for some time, with one aspect being the often disproportionate legal costs in comparison to the damages awarded. In this instance, the patient's initial legal costs were more than £30,000, which included the after the event (ATE) insurance premium claimed at almost £6,000.

The ATE premium is used to cover the patient's expert fees in the event that the claim is unsuccessful. In this case, only one expert was instructed by each party and the patient's expert fees were almost £3,000, but the ATE premium itself was almost double the total liability for expert fees.

Inflated costs such as those submitted in this case are seen often in clinical negligence cases, but recently the courts generally apply proportionality to claimants' legal costs more vigorously than under previous costs regimes of the past.

In this instance the court directly intervened and provisionally assessed the patient's costs at around half the original estimate. The court made very significant deductions given the nature and complexity of the case, which was settled swiftly and before any court proceedings were initiated. Despite initially disputing it, the patient eventually accepted the court's decision.

Although some cases are settled because the expert evidence is not supportive, we still work hard to reduce the costs of cases where legal costs are clearly disproportionate. Overall this was a very encouraging result for the defendants, and a good example of the court using its powers and taking a strict line on costs to ensure that they are both proportionate to the complexities of the case, while still allowing the parties access to justice.

This case study appears in the 2019 edition of Cautionary Tales.

Management of a sports injury

Management of a sports injury