Fixed recoverable costs in lower damages clinical negligence claims

On 15 September 2023, the Department of Health and Social Care published its response to the consultation it held on how lower value clinical negligence claims should be handled.

The intention is to deliver access to justice at proportionate cost, and significant changes will be implemented resulting in a new streamlined process, all of which will be set out in new Civil Procedure Rules and a Protocol that will come into force in April 2024:

• fixed recoverable costs (FRC) are to apply to clinical negligence claims of a value between £1,501 and £25,000 for work carried out by claimant and defendant solicitors pre-action or following a stay in proceedings after a claim form has been issued
• claims exempt from FRC are limited to where there are co-defendants, claims concerning a still birth or neonatal death, claims where limitation is raised by the defendant as an issue and also those where the claimant is a litigant in person
• an admission of liability within eight weeks of the letter of claim, results in a claim being dealt with under the ‘light track’. That provides a timetable for the claim to be potentially resolved within a further 12 weeks (if no further expert evidence is required) or 30 weeks (if it is)
• liability need not be admitted in full for the ‘light track’ to apply, a partial admission of liability where there is a breach of duty and that breach of duty caused loss, counts if the case is straightforward and liability expert evidence is not required.
• a response within six months of the letter of claim, results in a claim being deal with under the ‘standard track’, with a timetable to follow for the claim to be resolved within a further 18 weeks
• stocktakes are mandatory and Neutral Evaluation has a part to play under each track
• should it not be possible to resolve the claim, the claimant may proceed to litigation.

These changes are to tie in with the extension of the FRC scheme proposed separately by the Ministry of Justice. Under the Ministry of Justice’s proposals, FRC potentially applies to clinical negligence claims of a value between £25,001 and £100,000 where liability is admitted, no more than two experts are needed and duration of trial is no longer than three days.

We are delighted to announce that we will be hosting a webinar to consider how lower value clinical negligence claims should be handled, to help attendees ‘get under the skin’ of the new scheme and to prepare both practically and strategically, identifying key risks and areas of uncertainty.