Clinical negligence
The government says that costs recovered for successful claims are currently, on average, over double the amount of compensation awarded for these lower value claims. Such cases make up around 60% of claims against the NHS.
The government believes that fixing recoverable costs may reduce the financial impact on the NHS.
It also plans to make the claims process quicker and reduce conflict.
In 2022, the government held a consultation on its plans.
The proposal
Following recommendations from a Civil Justice Council working group, the government plans to apply fixed recoverable costs to claims:
- in the pre-action space where the value is above £1,500 and below £25,000
- against the NHS, not-for-profit and private healthcare providers in England and Wales
Small claims would not be affected.
The new process will be introduced through changes to the Civil Procedure Rules. The target date for the changes in April 2024.
Read the government consultation response
What this means for solicitors
Solicitors will need to:
- be aware of any costs that are put in place to support fixed recoverable costs in the pre-action space
- comply with any new processes set out in the Civil Procedure Rules in April 2024
Our view
We support the government’s aim to improve patient care and reduce the cost of litigation. But we do not believe the current proposals are the best way to achieve this.
Fixed recoverable costs should only apply to simple claims and should not restrict a solicitor’s ability to work on low-value cases to the highest standard.
If fixed costs are introduced, the government must make sure:
- victims of clinical negligence can get fair compensation for their injuries
- solicitors can take on low-value cases without compromising professional standards
- a process is agreed which includes challenging poor behaviour on both sides
- exemptions are in place, for example if someone has died
We support:
- the limit of £25,000 for cases covered by the scheme
- exchanging evidence at an earlier, pre-action stage in low-value claims
- a mandatory scheme
- a working group to set out the new process
We oppose:
- capping expert fees at £1,200: this could prevent high-quality evidence being collected
- a single joint expert giving evidence for both parties: this could be unfair to one side
We suggest:
- rules to ensure only suitable cases are included
- government considers the risk of specialist medical negligence solicitors changing to a more profitable area, as they can reduce strain on the NHS – for example by discouraging weak claims
What we’re doing
We responded to the MoJ’s consultation on changes to FRCs in lower value civil cases, voicing concerns about access to justice for injured claimants.
- We welcomed the formation of the working group to look at proposals more closely, but warned that details must be carefully considered to ensure access to justice
- The government set up a Civil Justice Council working group to develop a fixed recoverable costs process
- The Department of Health and Social Care (DHSC) published a report on calculating fixed costs
- The DHSC published a summary of responses to the consultation on fixed recoverable costs for clinical negligence claims
- We welcomed the Jackson review recommendations that clinical negligence claims are considered separately and fixed recoverable costs are capped at £25,000
- Jackson review of civil litigation costs was published
- We responded to the DHSC consultation on fixed recoverable costs in lower value clinical negligence cases
- We suggested fixed recoverable costs are only applied to simple claims so that solicitors’ high standards are not compromised
- We recommended that a fixed recoverable costs scheme might be appropriate for damages up to £25,000
Get involved
We continue to lobby government about fixed recoverable costs for medical negligence.
- Help us promote access to justice – support our campaigns
- Subscribe to and join in with discussions on our Civil Litigation Section
- Shape our responses to government – join our Civil Justice Committee
Fresh ideas for the justice system
We’ve come up with some fresh ideas for practical, affordable changes to our civil justice system that will enhance access to justice and could save the system £72 million over a five-year period.