Senior judges oppose singling out clin neg for fixed costs as consultation nears

Dyson: fixed cost figures may be controversial

Dyson: fixed cost figures may be controversial

The senior judiciary agrees with Lord Justice Jackson that fixed recoverable costs should not be introduced in clinical negligence cases in isolation, but as part of their extension across the entire fast-track and ‘lower’ end of the multi-track, it has emerged.

Newly released minutes of the February meeting of the Civil Procedure Rule Committee (CPRC) recorded that the Master of the Rolls, Lord Dyson, told members “that the senior judiciary, through the CJC, and Lord Justice Jackson in his costs reforms, have continued to press for the introduction of FRC for the fast-track and lower reaches of the multi-track. The principle of FRC was not at issue but the fixed cost figures may be controversial”.

It continued: “The Master of the Rolls felt that it is the wrong approach to cherry pick selected areas for reform and a FRC scheme should apply to all areas of litigation. The views of the judiciary have been made clear to the Government, but whatever our views… when the government reaches a decision, the committee’s obligation is make sure the rules implement the policy.”

Earlier this year, Jackson LJ spoke out against what he described as the “Balkanisation” of fixed costs.

Lord Dyson added that the government, “which is under-resourced”, has asked the CJC to assist with a consultation paper on FRC in clinical negligence.

The minutes said that member Amanda Stevens – a one-time president of the Association of Personal Injury Lawyers – took the CPRC through a number of issues a sub-committee on the issue had considered.

These included: limiting witness reports and experts at the pre-action stage; use of guideline hourly rates; transitional arrangements; procedure for cases that fall out of the FRC regime; insolvency of private providers of services; group litigation orders; mixed claims; disclosure and provision of health records.

The minutes continued: “District Judge Hovington expanded on his thoughts on the application of parts 26-29 [of the CPR, dealing with preliminary case management and the three litigation tracks] and deemed allocation of cases to the multi-track. There was discussion on how the cases could be streamlined once in the court process, including docketing, shared jurisdiction, reduction of steps and use of standard directions.”

A draft protocol produced by the sub-committee is to be passed to the Department of Health for inclusion in its consultation on FRC in clinical negligence, which is expected to be published quite shortly after the EU referendum – although the plan to introduce them in October 2016 now looks almost impossible to achieve.

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