Ever-rising cost of being sued

Keep it Legal: Negligence costs

Niloo Bozorgi looks at the costs of clinical negligence claims for independent practitioners and upcoming changes that will affect them

Overall costs of clinical negligence claims are now widely acknowledged to be at an unsustainable level and the Govern­ment has commenced various consultations on developing a cross-government strategy to control costs.

The background to this is, of course, the cost-shifting model on which the justice system in England and Wales operates. Since April 2013, all claims for clinical negligence are subject to qualified one-way costs-shifting (QOCS), so that a successful defendant cannot recover their costs from the losing claimant, except in very rare circumstances. 

This is a change from the previous position – which still applies to most non-clinical claims – whereby the unsuccessful party in a civil action pays the costs of the successful party. 

This model is not without exception and an award in costs is always at the discretion of the court, which will have regard to all the circumstances of the case, including how the parties have conducted their case.