Clinical negligence

The government plans to introduce fixed recoverable costs for clinical negligence claims up to £25,000. 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. Fixing costs may reduce the financial impact on the NHS.

The government also plans to make the claims process quicker and reduce conflict.

The proposal

A Civil Justice Council working group is developing a new process to apply fixed recoverable costs to claims:

  • above £1,000 and below £25,000
  • in the fast track or the multi-track
  • against the NHS, not-for-profit and private healthcare providers in England and Wales

Small claims would not be affected. The government will consider the working group’s recommendations when they’re published.

The new process will be introduced through changes to the Civil Procedure Rules. Timescales have not been confirmed.

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 are able to 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 this means for solicitors

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

Solicitors will need to comply with any new processes set out in the Civil Procedure Rules.

What we’re doing

  • 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.