Clinical negligence

Fixed recoverable costs in lower value clinical negligence claims – Law Society response

The proposals

The Department of Health and Social Care is consulting on how fixed recoverable costs (FRCs) might be applied in clinical negligence claims valued up to £25,000.

It's also reviewing whether the process for making a claim can be streamlined. 

The proposals include two tracks for lower value clinical negligence claims: light and standard. Each track would have its own grid of FRCs. 

The government is also proposing:

  • a timeline of mandatory steps for claimants and defendants – including a stocktake and a neutral evaluation
  • a list of exceptions from the regime, even where the value of the claim would fall below £25,000
  • sanctions for not adhering to the scheme

Our view

We cannot support the proposed fixed recoverable costs at this time.

While we support a bespoke scheme for fixed recoverable costs valued up to £25,000, due to their nature, these claims should not fall under the wider fixed recoverable costs work being carried out by the Ministry of Justice for civil claims valued up to £100,000.

In principle, we support the proposed twin-track approach, although the costs and timeframes associated with the various steps will need careful monitoring.

The proposed costs are based on figures put forward by defendant practitioners.

We acknowledge that claimant and defendant practitioners in this area have very different views as to the level at which costs should be fixed, however, in order to ensure injured claimants can access justice, we cannot support the proposed figures.

We also do not support including fatalities in the scheme.

What this means for solicitors

FRCs have been a key feature of lower value personal injury claims for many years now. However, due to the unique nature of clinical negligence, these claims have not been included in existing FRC regimes.

The Law Society represents both claimant and defendant solicitors working in the field of clinical negligence.

Under the new proposals, fixed recoverable costs may, in some cases, be lower than current recoverable costs.

It is likely that claimant solicitors will feel the effects of the changes more acutely.

Some complex low-value cases may no longer be viable or solicitors may have to settle for low amounts of compensation early on.

Next steps

The Department for Health and Social Care will analyse the consultation responses and report in due course.

Read the consultation on the GOV.UK website

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