Clinical negligence: Counsel’s advice is rarely needed in cases like this
Fees for counsel’s advice in lower-value clinical negligence cases will not be recoverable under the fixed recoverable cost (FRC) regime unless a child or protected party is involved, the Department of Health and Social Care (DHSC) has proposed.
The DHSC said medical expert report fees and after-the-event (ATE) insurance premiums covering the cost of those reports would be recoverable in all cases.
The department announced last week that plans to introduce FRCs for clinical negligence claims that settle pre-issue for up to £25,000 would come into force next April [1]. The consultation on them raised issues on disbursements for which it has issued a supplementary consultation [2].
Given the importance of medical evidence, and the role of ATE in managing the costs risks of it, retaining recoverability of them was “imperative” across all claims in the FRC regime.
The DHSC said claimant lawyers on the Civil Justice Council (CJC) working group whose report was largely adopted by the government argued that “obtaining early counsel advice may be helpful in identifying and narrowing issues early on and facilitate quicker progress”.
Against this, defendant lawyers in the group “felt that counsel advice was rarely needed in lower damages clinical negligence claims and there was a risk that counsel advice may be sought inappropriately”.
The former argued that advice from counsel should be separately recoverable and the latter that it should not.
The DHSC said: “Our view, having taken these views into account, is that counsel’s advice is rarely needed and would seldom be appropriate in the pre-issue phase in lower damages clinical negligence claims that do not involve children or protected parties.
“In addition, we have not seen evidence on the relationship between the speed of resolution and obtaining early (pre-issue) advice from counsel in these claims that would support the views of the CJC claimant group.
“We are also concerned that allowing separate recoverability could encourage unnecessary or inappropriate use of counsel in claims in this value band, which would increase the overall costs of conducting claims and undermine the principle of FRC.”
The DHSC proposed that court fees should also not be separately recoverable, except the fee for issuing proceedings where the limitation period was about to expire.
“We acknowledge that in conducting a claim, claimants may on occasion incur disbursement costs in addition to expert fee disbursements (or related ATE insurance premium disbursements). However, we are of the view that the grid costs proposed in the full consultation response are sufficient to cover such costs.”
Where claims involved children or protected parties, costs relating to the part 8 hearings required to approve pre-issue settlements would be separately recoverable, as would the court fees.
Last week’s announcement included a bolt-on fixed fee of £1,800 for such cases, rather than the £650 originally proposed.
The DHSC said: “It is our view that this increased bolt-on amount, in conjunction with the proposed approach to disbursements in cases involving protected parties and children… should adequately protect those claims from unacceptable access to justice risks.”