Personal injury and clinical negligence costs

Personal injury and clinical negligence claims are about injury, loss and compensation. But the costs can decide the practical value of the case.

A claimant may win, but recover less than expected. A defendant may settle the claim, but still face a large costs bill. A solicitor may succeed in the litigation, but then face a challenge to the retainer, success fee, ATE premium, or deduction from damages.

Costs in these cases are not an afterthought. They are often central to the economics of the claim.

I advise and appear in costs disputes arising from personal injury and clinical negligence litigation. I do not act as a general personal injury or clinical negligence barrister. My work is on the costs, funding, retainer and assessment issues which arise from those claims.

When I am instructed

I am commonly instructed on:

  • Fixed recoverable costs;
  • QOCS;
  • Part 36 offers and costs consequences;
  • Costs budgeting;
  • Clinical negligence allocation and admissions;
  • Detailed assessment;
  • Summary assessment;
  • Proportionality;
  • Hourly rates;
  • Expert fees and disbursements;
  • ATE insurance;
  • CFAs and success fees;
  • Deductions from damages;
  • Solicitor-client costs disputes;
  • Retainer challenges;
  • Infant and protected party costs;
  • Payments on account;
  • Indemnity costs;
  • Costs appeals.

These issues may arise before proceedings, at allocation, at a CCMC, after settlement, at a consequentials hearing, on detailed assessment, or when a client challenges the bill.

Fixed recoverable costs

Fixed recoverable costs have changed the economics of much personal injury litigation.

The issue is often not simply whether fixed costs apply. It may be which regime applies, which track is appropriate, which complexity band is correct, whether there is an exception, what disbursements are recoverable, and how Part 36 affects the result.

I advise both claimants and defendants on fixed costs, allocation, complexity bands, exceptions, disbursements and settlement strategy.

QOCS

QOCS can alter the real risk of personal injury and clinical negligence litigation.

It protects claimants, but it is not a complete answer to every adverse costs problem. Care is needed with costs orders, deemed orders, settlement agreements, Part 36, set-off, fundamental dishonesty, mixed claims and claims brought partly for the benefit of others.

Claimants may need advice before rejecting an offer, making an application, or going to trial. Defendants may need advice on whether a favourable costs order has practical value, and whether it can be enforced.

I advise on QOCS before and after settlement or judgment. These points are often best considered early, before the parties have made choices which cannot easily be undone.

Costs budgeting

Costs budgeting is important in higher value personal injury and clinical negligence claims.

A budget may shape the recoverable costs for the rest of the case. It may also affect settlement, expert evidence, trial preparation and the client’s understanding of risk.

Clinical negligence claims often create particular budgeting problems. Expert evidence may be expensive. Liability, causation, condition and prognosis may overlap. A modest claim may still require careful medical analysis. A high-value claim may involve very substantial costs exposure.

I appear at CCMCs in high value personal injury and clinical negligence claims.

Detailed assessment

Some personal injury and clinical negligence costs disputes end in detailed assessment.

The issues may include hourly rates, proportionality, expert fees, counsel’s fees, duplication, attendance notes, budgeting, incurred costs, assumptions, disbursements, ATE premiums and Part 36.

For receiving parties, the aim is to present the bill clearly and defend the work that matters. For paying parties, the aim is to identify the points which may change the outcome, not to object to everything.

I advise and appear on detailed assessment, including preliminary issues, points of dispute, replies, offers, assessment hearings and appeals.

Retainers, CFAs and deductions from damages

A successful claim may still lead to a dispute between solicitor and client.

The client may challenge the success fee, hourly rates, estimate, ATE premium, shortfall, or deduction from damages. The solicitor may need to prove the retainer, the advice given, the client’s informed consent, and the basis on which deductions were made.

These disputes can be difficult. They arise after the litigation appears to be over, and often after the client expected to receive more than they did.

I advise both solicitors and clients on CFAs, success fees, ATE premiums, deductions from damages, estimates, retainers, bills and Solicitors Act assessments.

Clinical negligence costs

Clinical negligence claims create distinctive costs problems.

The investigation may be expensive. Expert evidence may be central. Liability, causation and quantum may not divide neatly. A low-value claim may still involve substantial work. A high-value claim may involve large budgets, difficult expert evidence, interim applications and serious costs exposure.

I advise on costs issues in clinical negligence claims.

Personal injury costs

Personal injury costs disputes arise in road traffic, employers’ liability, public liability, disease, catastrophic injury and fatal accident claims.

The costs issues may involve portal costs, fixed recoverable costs, intermediate track costs, QOCS, Part 36, costs budgeting, detailed assessment, disbursements, ATE, deductions from damages or solicitor-client challenges.

In larger claims, the sums can be substantial. In smaller claims, the margins can be tight. In both, the costs position may determine whether the litigation has been commercially worthwhile.

Who I act for

I am instructed by claimant solicitors, defendant solicitors, insurers, medical defence organisations, and costs lawyers.

I act for both receiving parties and paying parties. That is useful. The same costs rule can look very different depending on which side of the order one stands.

What to send

When instructing me, it is helpful to send:

  • The pleadings;
  • The relevant order or draft order;
  • Any judgment or note of judgment;
  • The settlement agreement or Part 36 offers;
  • The costs budget and costs management orders;
  • The bill, schedule, or statement of costs;
  • Points of dispute and replies;
  • The retainer, CFA, DBA, or client care letter, if relevant;
  • Any ATE policy or funding documents;
  • Correspondence about costs, estimates, or deductions;
  • In clinical negligence cases, the letter of claim and letter of response, if admissions or allocation are in issue;
  • The hearing date, assessment date, or appeal deadline;
  • A short note identifying the real costs issue.

A short, clear note explaining the problem is often more useful than a large unexplained bundle.

Instructing me

I am often instructed where the costs of a personal injury or clinical negligence claim may affect the value of the litigation, the enforceability of the solicitor’s charges, the client’s net recovery, or the paying party’s true exposure.

For availability, fees and urgent enquiries, please contact my clerks at Hailsham Chambers.

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