UK: Fixed Recoverable Costs In Clinical Negligence - A Call For Collaboration

Last Updated: 29 August 2017
Article by Matthew McGrath and Simon Perkins

Lord Justice Jackson has today published his report "Review of civil litigation costs: supplemental report, fixed recoverable costs".

His report looked at costs across a wide range of civil litigation.

New intermediate track proposed

As part of his proposals, Jackson LJ has recommended the creation of a new "intermediate" track for claims for debt, damages or other monetary relief no higher than £100,000. It is envisaged that this track will be suitable for claims where a trial will not last longer than three days and there will be no more than two expert witnesses giving oral evidence for each party. A specific grid of costs is recommended for claims falling within this track. Claims for mesothelioma and other asbestos-related lung diseases are excluded from the track.

Clinical negligence claims

In respect of clinical negligence, Jackson LJ believes that with appropriate collaboration between claimants and defendants representatives, a working group could agree a detailed process for the conduct of clinical negligence claims up to a value of £25,000 and also agree appropriate Fixed Recoverable Costs (FRC) to fit within that process. He believes this is possible given an agreement reached for the handling of noise induced hearing loss claims.

He notes that 63% of successful claims where NHS Resolution paid damages were in claims valued up to £25,000. He believes that a large proportion of claims in the entire clinical negligence/med mal sphere are claims where damages are up to this level.

In his report he notes that while claimant lawyers were opposed, on the whole, to having any form of FRC in clinical negligence litigation, he had spoken to several claimant and defendant representatives who were optimistic that such a process could be implemented.

He believes that clinical negligence litigation should have a stand-alone scheme catering for cases up to £25,000 regardless of whether they were suitable for fast track, the proposed intermediate track or the multi-track. A collaborative exercise would lead to the creation of a workable FRC scheme suitable for cases up to this value.

In his report he says that this would take care of a large swathe of clinical negligence litigation. He said it would also promote access to justice.

Crucially, he says that once delivered and implemented, in time it might be possible to extend the success of such an initiative to claims of somewhat higher value. A good example mentioned is where breach and causation are admitted during the pre-action protocol, and all that remains in dispute are relatively straightforward quantum issues.

In terms of the proposed intermediate track, he accepted that the majority of cases in clinical negligence litigation above £25,000 were likely to proceed in the multitrack as they do now. These would be subject to cost management. He believes that cost management works well but there is scope for improvement in relation to incurred costs.

He does not believe that his proposals cut across other initiatives and in particular, the current Department of Health consultation which is seeking to develop agreed FRC for clinical negligence claims up to £25,000.

While he says that the DoH consultation paper is a step in the right to direction, he does not believe that it constitutes the same sort of bespoke process that will be required.

His recommendation is that all parties should embark upon a collaborative exercise to develop a bespoke process and agreed FRC in tandem and he emphasises the importance of delivering both together.

Conclusion

Lord Justice Jackson's report concludes that the only effective way to control the costs of civil litigation is to do so in advance. That means either applying fixed recoverable costs or cost budgeting on a case-by-case basis. Clearly, the time has now come to ensure that fixed recoverable costs are introduced into clinical negligence litigation. We would hope that after a successful implementation of FRC for claims up to £25,000, that this will be extended to claims valued at a considerably higher level.

It is important that as part of this process, work is done to streamline the litigation process and control the amount of work which litigants and their lawyers are required to do.

Published 31 July 2017

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