Clinical Negligence Legal Costs: What Can Be Recovered?

The legal costs associated with clinical negligence claims can be substantial. Medical expert evidence, complex questions of causation and the need to establish future care requirements can make these cases considerably more expensive than other forms of personal injury litigation.

However, the legal costs incurred in pursuing or defending a clinical negligence claim are not necessarily recoverable in full.

The amount recoverable depends on the applicable costs rules, the outcome of the proceedings and whether the expenditure was reasonable and proportionate.

This guide explains how clinical negligence legal costs are recovered, the rules governing assessment and the position regarding fixed recoverable costs.

Who pays legal costs in clinical negligence cases?

In civil litigation, the general rule under CPR 44.2 is that the unsuccessful party pays the successful party’s costs, although the court retains discretion. Where a claimant succeeds in a clinical negligence claim, the defendant will commonly be responsible for paying recoverable claimant legal costs.

For NHS claims in England, these payments are generally managed through NHS Resolution, which administers clinical negligence indemnity arrangements. However, there is an important distinction between the legal fees charged to a client and the costs recoverable from the opposing party.

Even where liability is admitted, the defendant may dispute the amount claimed.

What clinical negligence costs can be recovered?

Recoverable costs may include solicitors’ fees, counsel’s fees, medical expert reports, court fees and other necessary disbursements. The court considers whether the work was reasonably undertaken and whether the amount claimed is justified.

For example, a complex birth injury claim may require evidence from several medical specialists, detailed analysis of medical records and extensive work on future care needs.

By contrast, a claim involving a relatively straightforward treatment error may require fewer experts and less solicitor time.

The complexity of the case is therefore important when determining the reasonable cost of clinical negligence claims.

Are medical expert fees recoverable?

Medical expert evidence is frequently essential to establishing breach of duty, causation and the extent of the claimant’s injuries.

Expert fees can be recoverable, but the paying party may challenge the necessity of an expert, the work undertaken or the amount charged.

Where medical reports have been obtained through an agency, additional questions may arise regarding the reasonableness and recoverability of agency charges.

Early consideration of expert requirements can help control expenditure and avoid disputes during detailed assessment.

Are clinical negligence claims subject to fixed recoverable costs?

Although fixed recoverable costs apply to many civil claims, clinical negligence cases have generally been excluded from the extended fixed recoverable costs regime unless the relevant requirements concerning breach of duty and causation are satisfied.

The Department of Health and Social Care has separately proposed a fixed recoverable costs scheme for lower-value clinical negligence claims, broadly involving damages of up to £25,000.

The proposals aim to manage the costs of clinical negligence litigation and achieve earlier resolution.

However, the proposed standalone scheme had not been implemented as of the latest confirmed update identified in July 2026. Solicitors should therefore distinguish between the existing Civil Procedure Rules and proposals for future reform.

The debate also concerns access to legal representation. Some lower-value claims involve complicated medical evidence, meaning that the legal work required may be substantial even where damages are modest.

How are clinical negligence legal costs assessed?

Where the parties cannot agree the amount payable, the receiving party may commence detailed assessment proceedings.

This generally involves preparing a Bill of Costs, setting out the work undertaken, hourly rates and disbursements claimed. The paying party may then serve Points of Dispute challenging particular items.

Common issues include excessive solicitor time, hourly rates, duplication of work, expert fees and proportionality. Under CPR 44.3, costs assessed on the standard basis must be reasonably incurred, reasonable in amount and proportionate.

Where a costs management order has been made, the approved or agreed budget may also significantly influence recovery under CPR 3.18.

Why are clinical negligence legal costs increasing?

The financial impact of clinical negligence in England has attracted increasing scrutiny.

According to NHS Resolution figures reported to Parliament, claimant legal costs paid in 2024/25 reached approximately £621 million, alongside £178.5 million in NHS legal costs.

The National Audit Office has highlighted the financial pressures associated with clinical negligence claims, including rising damages and the legal costs of lower-value cases.

However, legal expenditure must be considered alongside the complexity of establishing negligence and the importance of securing appropriate compensation.

The Department of Health and Social Care faces the challenge of controlling expenditure while maintaining access to justice.

Efforts to improve patient care, reduce avoidable harm and resolve claims earlier may also help reduce long-term costs.

NHS Resolution’s work on claims resolution and learning from incidents is therefore relevant not only to litigation expenditure but also to protecting resources for patient care and social care needs.

How can solicitors improve recovery of clinical negligence costs?

Effective costs recovery begins before the claim concludes. Solicitors should maintain accurate time records, ensure work is allocated appropriately between fee earners and consider the necessity of expert evidence throughout proceedings.

Where costs budgeting applies, expenditure should be monitored against the approved budget, with significant developments addressed promptly.

Following settlement or judgment, a properly prepared Bill of Costs can help identify recoverable expenditure and support negotiations.

Early involvement from specialist costs professionals may also help avoid unnecessary reductions during assessment.

How ARC Costs can help

ARC Costs provides specialist legal costs services for clinical negligence cases, acting for both receiving and paying parties.

Our team assists with Bills of Costs, costs budgets, Points of Dispute, Points of Reply, negotiations and detailed assessments.

We understand the challenges associated with complex medical evidence, high-value claims and disputes over the reasonableness of legal expenditure.

Whether you require assistance recovering claimant legal costs or challenging a Bill of Costs, contact ARC Costs to discuss your requirements.

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