Government agrees to further discussion of clinical negligence costs regime, amid concerns

Clinical negligence: fixed costs threaten access to justice say opponents

Four out of five respondents to the government’s consultation on fixed recoverable costs (FRC) in low-value clinical negligence cases have echoed Civil Justice Council (CJC) concerns about a single joint expert being used, it has emerged.

Meanwhile, the Department of Health has agreed to demands for a working group on clinical negligence claims.

A summary of responses to last year’s consultation on a FRC regime for clinical negligence claims above £1,000 and below £25,000, published today, showed that 167 people and organisations responded.

More than a third came from law firms. Of the respondents currently practising law, nearly 90% represented the claimant side or both claimants and defendants.

On the key question of whether a FRC regime should be introduced on a mandatory basis, the respondents split 42% for and 58% against. But among claimant lawyers 85% were opposed and among defendant lawyers 86% were in favour.

However, the summary noted that those in favour were a far smaller group and the results “should be treated with caution”.

Arguments against a FRC regime included that it could drive cost elsewhere in the claims process, that it risked access to justice, that the claims were complex, that it was premature while LASPO savings were still unknown, and that patient safety could be put at risk.

Arguments for included that it would change behaviours and deliver cost savings, that it would benefit any successful claimant by resolving their claims faster, and that since many defendant solicitors used a FRC scheme, it was only fair claimant solicitors should also.

In its response to the consultation, which closed in May 2017, the CJC warned that using a single joint expert in such cases could be a barrier to justice.

Overall, 79% of respondents objected to the proposal that there should be a presumption of a single joint expert, while 21% agreed.

Reasons included concerns about fairness, that claimants in particular would feel disadvantaged, and that the expert could be seen to be the judge of an individual case.

In the section outlining the next steps, the government said repeated calls from respondents for a working group to be set up to consider improvements to the clinical negligence process had been accepted. Claimant and defendant representatives would be included.

Work had begun between the Department of Health and the CJC to establish the working group, the summary said. The government expected it would publish recommendations in autumn 2018, which it pledged to consider “as quickly as possible”.

The working group’s terms of reference had already been agreed and a chair and deputy chair appointed. Members were being sought that would “ensure that the relevant expertise is engaged and all sides are represented”.

It added that the group would have to consider applying an FRC regime “to incidents of harm occurring in the private sector”.

The summary noted that Lord Justice Jackson had also called for a working group “to develop a bespoke process for clinical negligence claims initially up to £25,000 together with a grid of FRC for such cases” in the supplemental report to his review of civil litigation costs, published in July.

It also noted Jackson LJ was “broadly supportive” of FRC in clinical negligence and in the course of his work had found “a number of legal experts, both claimant and defendant, who were optimistic”.

The Lord Chancellor would announce the next steps “in due course“.


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