Tag: clinical negligence

Consultation open on fixed recoverable costs in clinical negligence claims

Andrew McAulayLeave a comment

Clinical negligence matters have so far been excluded from fixed costs reforms and do not form part of the changes already due to be implemented in October 2022 (which can be found here).

A separate review has been carried out in respect of lower value clinical negligence matters and the Department of Health & Social Care published their proposals on 31 January 2022.

The consultation document sets out proposals for a streamlined pre-issue claims process for claims outside of the small track valued up to £25,000 in damages. Proposed exclusions include claims requiring more than two liability experts, claims with multiple defendants (where the allegations are different), claims involving stillbirth or neonatal death and claims where limitation is raised as an issue.

Matters would fall into a standard track or a light track according to complexity. Streamlined processes are set out for each track and template documents are proposed. 

The proposed fixed costs for each track are set out in the tables below and include provision for an additional ‘bolt-on’ for cases involving protected parties. We would recommend that the costs grid be read in conjunction with the flow charts detailing the process for each track at the end of the consultation report.  

Both tracks include mandatory neutral evaluation. The evaluators fees would also be fixed and shared equally.

Sanctions are proposed for failure to comply with the scheme. For Defendants, failures to meet the initial response times would result in the claim moving from the light track to the standard track, or from the standard track out of the FRC scheme entirely. For other failures, a 50% percentage uplift or reduction is proposed depending on which party defaults.

The consultation closes on 24 April 2022 and can be completed online here.

This article was originally featured in our February newsletter which can be found here.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.

Incurred Costs – Shifting Change

Joanne ChaseLeave a comment

LJ Jackson has recognised there are problems surrounding incurred costs. As predicted by many, he is concerned that some parties will undertake as much work as possible before the case management conference, thereby putting large swathes of costs outside of the reach of costs budgeting. This tactic of “front loading” goes against the very essence of what costs budgeting stands for.  LJ Jackson in his lecture earlier this year referred to incurred costs, stating that “a residual power to set a global figure for both incurred and future costs for any phase is to be introduced”.

His suggested solutions are sensible ones – (1) the court should have the power to comment on the incurred costs and to summarily assess those costs at the case management conference, if necessary; or alternatively (2) the court should be able to set a global figure for any phase, to include both incurred and future costs. This would be a welcome development in the task of controlling costs via the costs budgeting regime. The clear benefit to parties is that at the conclusion of the case where costs have fallen within limits of the budget, then parties may start to experience their costs being allowed in full, including the incurred costs. At present, when a party has actively managed their case effectively and efficiently, the incurred costs continue to be subject to either detailed assessment or summary assessment. LJ Jackson’s proposal would avoid this expensive and costly assessment process.

If this proposal was to be encompassed into any future revisions to the rules, then the parties to the litigation would begin to encounter some additional benefits. LJ Jackson has also suggested an introduction of pre-action costs management principally for clinical negligence costs. It appears there is a shift towards applying more focus to the issue of incurred costs in the future.

LJ Jackson’s proposal to change the position regarding incurred costs is one of the many steps needed to make costs management work.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com

Fixed Costs in Clinical Negligence Claims – Yes or No?

Joanne ChaseLeave a comment

In June 2015 Ben Gummer, Health Minister, announced that the Government was looking into implementing a fixed costs regime for clinical negligence cases with a value of up to £100,000. It was then announced in August 2015 that the Department of Health were considering whether or not to increase this limit to £250,000.

The justification behind the proposal was to reduce the amount paid out to Claimant lawyers for the costs of pursuing successful claims. Whilst the Department of Health predicted that £80m could be saved through a limit of £100,000, they estimated a further £25m would be saved by increasing the limit to £250,000. The scheme had a proposed implementation date of October 2016.

Since the announcement, there has been serious concerns raised by Claimant clinical negligence lawyers, and their representing bodies.

APIL highlighted a major conflict of interest in the proposals – “Given that the Department of Health is the negligent party when a Claimant pursues a successful clinical negligence claim, then it should not seek to fix costs or to set the level of fixed fees. If they are introduced, an independent body should assess fee and expert fee levels, to be reviewed annually”.

The Law Society in their response reminded the Government that “The full effects of LASPO are yet to work through the system in any substantive way, and the Department’s failure to take into account the impact of LASPO on recoverable costs is a fundamental flaw in the reasoning that has led to the conclusion that a new scheme of fixed costs should be introduced”.

The abolition from 01 April 2013 of the unsuccessful Defendant being responsible for payment of additional liabilities is yet to take full effect, and the Law Society warn that if “the Department of Health were to decide to press ahead with further methods to reduce legal costs, that would be seen as a telling implication that LASPO has not been effective in the way that the Government initially envisaged it”. The Government’s analysis and quantification of the savings that could be made if fixed costs were to be introduced has been based on pre-LASPO data which, of course, includes additional liabilities. The amount the Government claim could be saved by the implementation of fixing costs is therefore misleading. A further analysis should be made of the post LASPO costs.

There is serious concern that the implementation of the scheme will result in a reduction of clinical negligence lawyers being prepared to accept lower value clinical negligence claims. This will impact of the public’s access to justice. Considerable work is involved pre litigation in securing supportive breach of duty evidence, and it must be economical for a lawyer to undertake this work. Further, there has been no suggestion as to whether or not the proposal involves cases where liability has been admitted. Both the Law Society and APIL agree that, if implemented, the scheme should only apply to straightforward claims where liability is admitted in the pre litigation stage and where damages are less than £25,000.

It is also argued that expert’s should be prepared to accept the capped fees in order to share the effect of the Government policy. It is the Solicitors who, in the past, would absorb any difference, and the Department of Health is therefore encouraged to consult with medical expert groups on this issue.
Finally, it is stressed that the NSHLA must also adopt a cost saving approach. There is currently no incentive in the proposal for the Defendant to settle early. If the scheme is implemented for matters where liability is admitted within the Letter of Response, this would limit the Solicitors’ exposure to the Defendant’s conduct often resulting in increased costs.

On 19 November 2015 the Government announced a delay in publishing their consultation on the proposal, which was due that month, and advised that it would be published in early 2016 subject to committee clearances.

Claimant Solicitors are therefore left pondering what exactly will be proposed, and how will it impact upon their profession. Many wonder that if the NHS focused on addressing the cause of the negligence and improving patient safety then savings would be made from the heart of the problem, and hence less money paid out overall for clinical negligence claims.

If you have any questions or queries in relation this blog please contact Joanne Chase (joanne.chase@clarionsolicitors.com and 0113 336 3327) or the Clarion Costs Team on 0113 2460622.