The introduction of fixed recoverable costs (FRC) in clinical negligence cases is still planned for 1 October 2016, the Department of Health has confirmed.
The news came as independent research of the pre-LASPO regime concluded that conditional fee agreements (CFAs) gave people on middle incomes access to justice and did not result in “a feast of ambulance-chasing”.
The original plan was that the consultation on FRC would be published in October 2015, but that was postponed to “early 2016”. It has yet to be published.
Labour justice spokesman Andy Slaughter asked the government whether it had considered delaying the introduction of FRC until the planned reductions in costs resulting from LASPO had been seen.
Health minister Ben Gummer replied this week: “The intention is to introduce FRC for clinical negligence claims from 1 October 2016, following the outcome of the public consultation.
“The department is aware that there are pre-Legal Aid, Sentencing and Punishment of Offenders Act 2012 cases in the system and will be for a number of years. However, FRC for clinical negligence is not a new concept and had been proposed by Lord Woolf and Lord Justice Jackson in 1996 and 2009 respectively in order to better manage clinical negligence claims through the legal process.”
With time for the consultation fast reducing, given the need for new rules to be approved by both the Civil Procedure Rule Committee and then Parliament, the reply indicates that there may only be a short consultation on the detail of an FRC scheme, rather than the principle of it.
The Department of Health has previously indicated that it would look to introduce FRC for claims worth up to £100,000, or possibly £250,000.
Julie Say, a clinical negligence partner at Hodge Jones & Allen, said she was “dismayed” by the announcement.
“It appears that the government is intent on introducing a fixed costs regime come what may and that the long-promised consultation will be nothing more than an exercise in how a fixed costs regime should work, rather than considering how clinical negligence cases are run and the drivers behind legal costs in such cases.”
The research into clinical negligence litigation between 2001 and 2013, funded by the Nuffield Foundation, found that the “demise of legal aid” reduced the “propensity for claim for those in lower income groups”.
Led by Professor Paul Fenn at Nottingham Business School, researchers found that the number of clinical negligence claims in 2013 was “not very different from the level of claiming in 2001”.
This was explained by a steady fall in claims between 2001 and 2009, followed by a rise, with the number of new claims “approximately doubling” between 2009 and 2013. The study did not cover the post-LASPO period.
Funding clinical negligence cases: access to justice at reasonable cost? found that while the number of claims was not that different during the period, the “socio-economic composition of claimants” did change.
The proportion of those on middle incomes who pursued medical negligence claims increased from less than 4% in 2001 to 22% in 2013, while those in the lowest income group fell from 15% to only 7%.
“A snapshot of clinical negligence experience in 2001 would have revealed a situation in which the majority of patients with valid claims against doctors or hospitals were unable to fund their legal expenses because they were not eligible for (means-tested) legal aid, but were not sufficiently wealthy to pay lawyers from their own resources.”
The study found that the number of medical negligence claims fell between 2001 and 2009, but then rose between 2009 and 2013. By 2012/13, there were 10,129 new claims against NHS bodies, up from 6,652 in 2009/10.
A total of £1.26bn was paid in connection with clinical negligence claims in 2012/13, including £205m in claimants’ legal costs, compared with £787m in 2009/10.
The proportion of successful claims increased from around 45% in 2001 to around 70% in 2009, but researchers found “signs that this increase in the success rate had stopped (and may have been reversed) after 2009”, corresponding with the period of rising claims.
“This may reflect a less cautious approach to risk assessment on average as new, non-specialist law firms entered the clinical negligence market.”
Professor Paul Fenn commented: “There have been concerns that the shift to using ‘no win, no fee’ lawyers to fund the majority of clinical negligence claims might act as a barrier to justice because lawyers would be too cautious to take cases, or conversely that they would lead to a surge in ‘ambulance-chasing’ behaviour.
“Our research shows that neither of these things has happened, although we need to keep a close eye on high-value claims relating to infants over eight weeks to ensure this group is not falling through the cracks.
“We also need to be aware of the recent trend towards higher claim frequencies and costs with a view to monitoring the impact of the LASPO reforms, introduced in 2013.”