By Matthew Best, Director – ATE Partnerships, Head of Personal Injury & Clinical Negligence at Legal Futures Associate Temple Legal Protection
On 15 September 2023, the Department of Health and Social Care issued the Government’s response to consultation on fixed recoverable costs [FRC] in lower value clinical negligence claims.
Government proposals in the response:
- Introduction of a ‘Pre-Action Protocol for the Resolution of (low value) Clinical Disputes’ referred to as the ‘LVCD protocol’.
- Introduction of a Lower Damages Clinical Negligence Claim FRC scheme referred to as the ‘LDFRC scheme’. This covers clinical negligence claims with a value at settlement or judgment from £1,501 to £25,000.
- The LDFRC scheme includes two ‘tracks’ for eligible clinical negligence claims.
- The LDFRC scheme relates to the pre-issue part of
- the process only, and parties are not restricted from proceeding to litigation if the claim is not settled once the pre-issue process is completed.
- A small number of litigated clinical negligence claims will be allocated to a case management track, where they may interact with the Ministry of Justice’s FRC reforms due to come into force in October 2023. Where breach and causation have been admitted and subject to the allocation criteria, they will be allocated to the intermediate track.
- Where clinical negligence claims are not eligible for allocation to the intermediate track they will be allocated to the multi-track.
The aim of the LVCD protocol is to facilitate resolution, by requiring parties to exchange expert evidence in the pre- action phase and to participate in resolution stages. The LVCD protocol will describe the behaviour the court expects of the parties prior to the start of proceedings.
The intention is that the new rules will come into force on the common commencement date for secondary legislation in April 2024.
The DHSC is also launching a further consultation focusing on the specific issue of disbursements under the proposed LDFRC scheme, inviting views on a proposed way forward on disbursements in the scheme.
It was inevitable that this day would come. It has been looming on the horizon for quite a while now. The government stresses that – whilst it understands the concerns about predicting the ultimate settlement value of a claim – claimants will need, early on, to obtain relevant information and evidence, assess the risks around valuation of a particular claim, and value the claim accordingly.
In other words, solicitors will need to spend thousands on medical evidence and work-in-progress, before realising if a claim is worth running or not. This is going to make the cost of running of clinical negligence cases even more front-heavy than it already is. We all know that the biggest problems are the NHS’ approach to defending litigation and learning lessons, which are unlikely to change.
Having said the above, the further consultation into the specific issue of disbursements under the proposed LDFRC scheme could be welcomed. There are positives and negatives to this though; if expert fees are fixed at certain hourly rates for example, we will certainly see experts leaving the field – making access to justice even more difficult to achieve.
A word on ATE premiums; the government consultation on disbursements admits that insurance premiums relating to the cost of expert reports are currently a key mechanism to manage the cost risks of medical expert evidence. They consider it imperative that these elements of cost are separately recoverable across all claims in the LDFRC scheme.
We do of course welcome this position at this current time. It simply means that as of right now, premiums do not need to drastically change, whether because the claimant has to pick up more of the cost, or indeed if they need to increase at all. As Temple showed back in April when the CPR changed around QOCS, if there is currently no evidence to show that premiums must increase in line with the higher risk insured, then we simply will not take a knee-jerk reaction to do so.