Fixed Recoverable Costs, Clinical Negligence and Access to Justice – an Update

Over the past decade, the government has been steadily implementing fixed recoverable cost (“FRC”) regimes across much of civil litigation. Due primarily to its high level of complexity, clinical negligence work has so far been excluded from such schemes. However, since my blog on this issue last year, the government has considerably advanced its plans and rule changes are now set to be enacted that may have significant ramifications – not just for lawyers – but for the victims of medical negligence themselves.

What are the proposed new rules?

As of the date of this blog, September 2023, the government intends to bring FRCs into clinical negligence in two ways:

Firstly, for claims valued between £1,501 and £25,000 inclusive, there is the proposed new Lower Damages Clinical Negligence Claim FRC scheme (“the LDFRC scheme”). This is set to come into force in April 2024. This new scheme will fix legal costs in the pre-issue phase and will require claimants to front-load much of the work in their cases, with possible sanctions if the evidence they provide at the outset of claims is found to be insufficiently detailed.

Secondly, for claims between £25,000 to £100,000 in value, there is the new “Intermediate” track. This is due to be implemented on 1 October 2023. This will apply across many types of civil litigation, not just clinical negligence and personal injury cases. Intermediate track claims will be assigned to one of four ascending complexity bands, with the level of costs recoverable increasing proportionately based on the band. However, the government has said that the Intermediate track will only apply to clinical negligence claims where both breach of duty and causation are admitted.

Do the new rules protect access to justice for injured and bereaved people?

It is devastating to suffer injuries through failings in medical care and attention. Victims of such injuries have the right to be dealt with humanely, for the gravity of what has occurred to them to be respected, and for their claims to be dealt with effectively. This all takes time. I am deeply concerned that under the restrictions of the proposed new schemes, there will simply be insufficient time for solicitors to deal with claims in a human and professional way.

The upshot of this may be that some firms may have to stop taking on work perceived as “lower value” (which tragically will often include the entirely devastating category of claims where a loved one has died due to medical neglect) and as a result, many victims of medical negligence may be unable to find solicitors to act for them in such cases. This would be a terrible blow to access justice, but unfortunately, it is a phenomenon that we have already seen occurring in the personal injury sector.

Challenges to the rules

The Association of Personal Injury Lawyers (APIL) has issued Judicial Review proceedings against the proposed new Intermediate track rules on various. These proceedings are currently pending the government’s response to its latest consultation (which closed less than two weeks before this blog was published).

APIL has also published a short negative response to the envisaged LDFRC scheme. Whether or not there will also be a formal legal challenge against the same remains to be seen.

For those committed to access to justice for severely injured people it is now, unfortunately, a case of – watch this space. It is to be hoped that the government may consider further amendments to the rules in light of the significant concerns raised by practitioners or (at the very least) that it will monitor the new schemes post-implementation to ensure that they do not impose on injured individuals’ access to justice.