Our Response to the outcome of the Fixed Recoverable Costs for Clinical Negligence Claims Consultation

Sean Linley – Costs Consultant

In January 2017 the Department of Health launched a consultation with an aim to introduce Fixed Recoverable Costs in Lower Value Clinical Negligence Claims. The purpose was to get feedback on how to design and implement such a scheme for Clinical Negligence cases valued between £1,000.00 and up to £25,000.00 in England and Wales.

The Department of Health has prepared a report following the consultation detailing the results of the and is now available online.

PIC examine the outcome of the consultation and the process moving forwards.

In Brief

The headline points arising from the outcome of the Consultation can be surmised as follows:

  1. Most Respondents believe that Fixed Recoverable Costs should not be introduced;
  2. Most Respondents believe that an alternative scheme should be found;
  3. There is no agreement over the basis of when implementation should take place;
  4. The largest portion of Respondents believed an alternative proposal should be found for how FRC should be set;
  5. 77% of Respondents believed that there should not be a cap on recoverable expert fees;
  6. The majority of Respondents disagreed with the presumption of a single joint expert;
  7. Most Respondents agreed that early exchange of evidence should be adopted;
  8. There was no firm agreement from the Respondents over the draft protocol and rules;
  9. There was a divide over whether FRC should apply to cases where there are two or more Claimants;
  10. There was no agreement over exit points from the FRC scheme or what exemptions (if any) to the scheme should apply;
  11. There was, however, large agreement that for cases with 2 or more experts and involving child fatalities, FRC should not apply.
  12. Respondents agreed upon the need for parties to be less adversarial and for the need to focus on early resolution.

A CJC working group has been set-up to consider the issues with a report detailing further proposals to be published in the autumn. The government will consider the same before any proposed implementation.

The Report

The Department of Health has published two documents following the consultation. One is a summary of responses to the consultation and the other is a report prepared by Professor Fenn. His report functions as an impact assessment and contains a draft of the revised civil procedure rules and an independent evaluation of the proposals.

Many questions were raised in the Consultation as to how a Fixed Recoverable Costs scheme would work to ensure that access to justice for Claimants was preserved. The report paints a picture of mixed views and opinions.

Most respondents (58%) felt that a Fixed Recoverable Costs scheme should not be introduced. Interestingly, for Law Professionals representing solely Claimants, 85% were against a FRC scheme whereas for those Law Professionals representing solely Defendants 86% were in favour. It is worth noting, however, that the sample sizes of groups representing both Claimant and Defendant and solely Defendant were much lower (26% of total responses) than Claimant only-respondents who made up 74% of responses to this question.

Concerns were raised throughout the Consultation that under a Fixed Recoverable Costs scheme access to justice would be restricted and that this in turn would damage patient safety.

35% of Respondents believed that FRC should apply to claims valued between £1,000.00 and £25,000.00 with a further 65% believing another scheme should be used. There were many concerns raised around whether claim value was the most appropriate criteria. It was suggested that fixed costs should apply to simpler cases or those where liability was admitted.

There was no agreement over when a scheme should be implemented. The choices given were implementation based on when the Letter of Claim was sent (25%), all incidents after the date of implementation (32%) and another proposal (43%). The most popular alternative proposal was to have the ‘date of retainer’ as an implementation option. This was perceived to be a mid-way point between the incident date and Letter of Claim date.

No consensus was reached during the Consultation over how the Fixed Recoverable Costs should be set. The only agreement was that less adversarial behaviour would be required to make any scheme workable. There was also a strong response that some form of incentive should be introduced to encourage parties to deal with cases as efficiently as possible.

Moving on, Respondents were overwhelming against a maximum cap for experts’ fees. Respondents stated that they believed experts would not work for the suggested fees and that a cap would leave a reduced pool of experts which could impact upon access to justice.

The Consultation results demonstrated that there was also a strong resistance to a presumption of a single joint expert with 79% of respondents against the idea. The Department of Health’s proposal was that this may be appropriate for Breach of Duty & Causation only. It was noted that many Respondents believed this idea would be unfair.

One area the majority were in support of was the early exchange of evidence with 66% in support. It was noted that this was one area which would ensure Clinical Negligence cases were processed with speed and efficiency. Concerns were raised, however, as to how this would work in practice given the complex nature of Medical Negligence claims generally.

It is also clear from the report that further consideration needs to be given to the scheme in terms of the different entry points needed. The Department of Health noted concerns from Respondents that many Clinical Negligence cases do have value other than financial (e.g. deaths of the elderly and still births) and that any scheme introduced should include provision for exceptions for complex cases.

The response to the illustrative draft of the Civil Procedure Rules and its constituent parts was mixed and highlights that further work is needed.

Other points of note relate to the lack of agreement over exit points from any FRC scheme and what exemptions to the scheme should apply. There was some agreement though with the majority of Respondents believing that case with 2 or more experts should be exempt. There was also broad agreement that FRC should not apply to cases involving child fatalities.

The Fixed Recoverable Costs Proposals

Professor Fenn in his report published draft fixed costs proposals for claims with no more than two experts and it provides food for thought. The proposals are suggestive only but are likely to prove a starting point for the CJC working group. The trial advocacy fee remains to be set and reductions to these fees are proposed for early admissions within each stage


The Next Steps

One issue both sides agreed was the need for the Government to set-up a working group to examine the process. Thankfully, this call has been heeded.

The working group will be set-up through the Civil Justice Committee and will be chaired by a neutral party with mediation employed in areas of specific disagreement. The report notes that preliminary work with the group has begun and that it is hoped that the working group will be in a position to publish recommendations in Autumn 2018, with the same to be considered by the government, thereafter. Implementation in April 2019 looks likely at this stage.

Steps must now be taken to ensure that the working group has access to all of the relevant information, so an informed decision can be made that works to preserve access to justice and prioritises patient safety. It is vital that any scheme introduced focuses on the patient and lessons which can be learnt.

Master Cook, at a recent talk on Clinical Negligence, attended by PIC, made his feelings known on the issue and it feels an appropriate end point: “it really is a no brainer, if you learn from mistakes and don’t injure people you will not be required to pay large amounts of compensation and costs.” The message couldn’t be clearer. Any FRC scheme must be about the patient and should not be an outlet for Lawyers to become an easy scapegoat.

PIC await the recommendations from the CJC working group due this autumn with interest.

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