Fixed costs in clinical negligence claims

The government will consult on plans for the introduction of fixed recoverable costs in clinical negligence claims i.e. the introduction of a scheme such as exists for the majority of personal injury fast track claims, but, as revealed on 12 January 2016 in a reply by Ben Gummer MP, Parliamentary Under-Secretary to the Department of Health, to a written question from Andy Slaughter MP, the government’s intention is clear.  That is, to introduce fixed recoverable costs (FRC) for clinical negligence claims from 1 October 2016 once the consultation is out of the way.  This follows a delay in the consultation process.  The formal consultation has not yet been published, but the implementation date remains the same.

There have been suggestions that the FRC regime may be applied in all clinical negligence claims with a value of up to £250,000.  It would on that basis include many claims involving life-changing injury.  Outside clinical negligence a system of imposed fixed costs exists only in relatively straightforward personal injury claims with a value up to £25,000.  FRCs are set at levels which generally allow streamlined legal practices to carry out necessary basic work on a claim in straightforward cases.  Such a regime if imposed on clinical negligence claims is likely to have significant implications for the viability of bringing such claims on behalf of injured patients, and to have knock-on effects on the fees which can be paid for expert evidence, particularly in the more complicated type of case.

For claimant lawyers who will be bringing such claims under conditional fee agreements (no-win, no-fee agreements), the paring down of costs recovered on successful claims will affect the economics of investigating difficult or complicated claims (which will include obtaining advisory reports from medical experts) where there is a high risk of recovering no costs at all.  In the past the costs recovered from cases which are won have been used by claimant lawyers to help fund the work necessary for investigating and then abandoning, or pursuing and in the end losing, other claims.

It is argued that fixed recoverable costs are necessary in order to control the cost of defending such claims incurred by the NHS.  Victims’ organisations argue that those costs would be avoided if more effort were to be put into avoiding the incidents which give rise to the claims in the first place.

Medico-Legal Minder will keep you informed once the government’s consultation documentation is available.

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