Costs In Medical Negligence Claims – DHSC Launches Consultation On Fixed Recoverable Costs For Lower Value Claims

The Department of Health and Social Care (DHSC) has confirmed that it has launched a consultation into the proposed rollout of fixed recoverable costs and a new streamlined process for claimants pursuing medical negligence claims up to the value of £25,000. The consultation follows on from previous comments made by the Government concerning this subject.

In 2017, it was confirmed that the Government would set up a working group to develop a bespoke process for medical negligence claims and a grid of costs. The essential idea was to limit the amount of money spent on medical negligence litigation. This followed concerns that NHS compensation payments were unsustainable.

What is the current process with legal costs in clinical negligence?

At present, the usual process is that, where a medical negligence claim succeeds, the defendant will pay the legal costs of the claimant and there is no specific limit on what those costs could be. However, it is worth remembering that costs must be reasonable and proportionate and can be subject to detailed assessment if not agreed upon.

However, following concerns that costs of medical negligence claims were spiralling, the Government has stepped in and begun the process of considering a new way of doing things by introducing fixed recoverable costs, which would be mandatory for all claims worth up to £25,000 in compensation. In reality, this would mean that the level of investigations that can be undertaken would be limited by the amount of costs fixed by the Government’s proposal.

The Department of Health’s Consultation

As mentioned above, the DHSC has this week published their consultation in relation to the plans.

Within the consultation, proposals are put forward for how the scheme would work. Health Minister, Maria Caulfield, said that care had been taken to ensure the proposals would not impede access to justice.

The consultation sets out that the scheme would require a rapid exchange of evidence for faster agreement on liability, causation and quantum, with claims assigned either to a light track or standard track according to their complexity. Two resolution stages would be built in a ‘stocktake’ meeting between parties and a neutral evaluation by a barrister to resolve as many cases as possible.

Costs would be limited to £6,000 for standard track claims plus 20% of damages agreed. For claims in the so-called ‘light’ track, proposed recoverable costs are no more than £1,500 plus 10% of damages.

Claims requiring more than two liability experts, those with genuine multiple defendants and those involving stillbirths or neonatal deaths are excluded, as are those where limitation is raised by the defendant as an issue.

Consultation on the proposals is now open until April 2022.

Continued debate

Ever since the plans were first mooted, campaigners have been tirelessly working to highlight the adverse unintended consequences of the plans and encourage a Government change of heart. Whilst it is perhaps accepted that changes are required, campaigners are keen to ensure that the plans do not deny access to justice in complex and difficult medical negligence claims.

Lord Falconer, a heavyweight in the political and legal world, has previously backed the ongoing campaign.

In 2019, a statement from Lord Falconer said that the Government should take a step back from their proposals and actually listen to those with the day-to-day experience of running medical negligence claims. He said:

Lord Falconer added that the proposed cap of £25,000 would mean that fatal injuries caused by negligence being subject to fixed fees, despite the complexity potentially involved in running such a case.

Lord Falconer’s intervention was welcomed by the Society of Clinical Injury Lawyers (SCIL).

Chairman of SCIL, Steve Webber, was reported as saying that the Government proposals risked putting specialist law firms out of business, which would mean more unmeritorious claims being brought by litigants in person and claims management companies. He added:

But the focus has so far been on claimant costs, without considering the impact of defendant behaviour in protracting claims and incurring higher costs. In 2019, former solicitor general, Lord Garnier, accused the NHS of increasing costs through a culture of “defend, deny and delay” and has previously asked why the plans do not demand a change in defendant behaviour.

Fixed costs in medical negligence claims – Comment

Whilst this protracted review of the current system may well be justified, the main concern is that the implementation of the new proposals will result in changes that will limit access to justice for people with legitimate claims.

It is fair to say that the vast majority of medical negligence claims are complex, difficult and lengthy – and these factors can be true regardless of the level of compensation involved.

Medical negligence claims require input not only from specialist legal teams but also from medical experts and they can be complicated and difficult to properly and thoroughly investigate. This invariably leads to such cases being costly, through no fault of the claimant.

The approach of defendants must also be scrutinised if a safe and fair system is to be developed. The importance of support from prominent figures, such as Lord Falconer, is clearly significant, but the campaign will need to continue. It remains to be seen how the plans for fixed recoverable costs will manifest over the coming months.