The government has finally published its proposals for fixed recoverable costs for all low-value clinical negligence claims valued up to £25,000.00.

The consultation proposes a new scheme that ministers have said will not change the compensation that a successful claimant can receive, just the costs they can recover from defendants.

The proposed scheme includes:

• a new streamlined process for claims
• limits of the amount of legal costs that can be recovered by claimant lawyers for lower value clinical negligence claims

Fixed recoverable cost schemes have already been introduced in most other categories of personal injury claims valued at up to £25,000.00 damages, including road traffic accidents, employers’ liability and public liability. 

Clinical negligence is one of the last areas of personal injury to be included in the fixed costs recoverable scheme and has been on the cards since Sir Rupert Jackson’s recommendations in July 2017.

Costs would be limited to £6,000.00 for standard track claims plus 20% of damages agreed.  For claims in the ‘light’ track, proposed recoverable costs are no more than £1,500.00 plus 10% of damages.

The new system would apply to cases that fall into the fast-track, although it would exclude claims requiring more than two liability experts, claims with multiple defendants, claims involving stillbirths or neonatal deaths, and claims where limitation is in issue.

The government is currently seeking views on proposals to introduce the streamlined mandatory FRC scheme for lower value clinical negligence claims, and after analysis of responses received will publish a consultation response document.

Clinical negligence is a complex and specialised area of law and there is often a huge amount of investigative work carried out by the claimant’s solicitor to be able to first establish and then to prove negligence.  Even in cases where damages may be valued at less than £25,000.00, this does not mean the cases themselves are less complex.

Although the government claims that claimant compensation will not be affected, the proposed fixed costs scheme means that where only fixed costs can be recovered, it is likely that more monies will be taken from the claimant’s damages to cover any shortfall.  There will however be a sigh of relief from all concerned that at least the government is not proposing to set up a low-cost statutory scheme akin to the Criminal Injuries Compensation Board.

External links - Consultation document:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1051227/Fixed-recoverable-costs-in-lower-value-clinical-negligence-claims-a-consultation.pdf