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Government plan fixed costs for clinical negligence

The Government will set up a working group to develop a ‘bespoke process for clinical negligence claims and a grid of costs’. In a consultation…

Executive summary

The Government has confirmed that it will set up a working group to develop a ‘bespoke process for clinical negligence claims and a grid of costs’. In a consultation response published on 15 February 2018, more than a year after publication of the consultation, ‘Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims’ on 30 January 2017, which invited comments on the design and implementation of a scheme of fixed recoverable costs (FRC) for clinical negligence cases worth between £1,000 and £25,000 in England and Wales and which closed in May 2017, the Department of Health and Social Care stated that work has already begun between the Department and the Civil Justice Council (CJC). It expects recommendations to be published this autumn which will be considered by the Government ‘as quickly as possible’.

In detail

167 people and organisations responded to the consultation, more than a third of which were law firms. On the central question of whether a FRC regime should be introduced, the respondents split 42% in favour and 58% against. Perhaps unsurprisingly, 85% of claimants lawyers were opposed with 86% of defendants in favour. The response does note however that those in favour were a smaller group and that the results ‘should be treated with caution’. Another headline figure was that 79% of respondents objected to the proposal that there be a presumption of a single joint expert with 21% in favour.

In the report’s concluding ‘Next steps’ section, the Government confirmed that it accepted the calls from respondents for a working group to consider improvements to the clinical negligence process. Representatives from both the claimant and defendant sides will be included.

What’s next?

Since the consultation closed last May, Lord Justice Jackson published his supplemental report on civil litigation costs in July, which included calling for a working group for fast track clinical negligence claims on the lines which have now been announced. Following publication of that report, the Government confirmed that it was considering all of Jackson’s proposals on fixed costs so yesterday’s announcement is a clear indication that his ideas are being taken forward.

Whilst the nuts and bolts of any FRC scheme for fast track clinical negligence claims will inevitably be the subject of debate and – inevitably – some disagreement, it must be hoped that the working group will be able to deliver a process which will allay the concerns of those on the claimant side whilst also, crucially, acting as a spur to changes of behaviour which will improve access to justice for all whilst also delivering costs savings for healthcare bodies.

For more information please contact Rachel Kneale, Partner on 020 7822 7175 or by email at

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