Birss: Fundamental issues remain
The extension of fixed recoverable costs (FRCs) to low value clinical negligence cases could be delayed to 2025 because of continuing issues with the new rules, it has emerged.
It comes as the Association of Consumer Support Organisations (ACSO) has argued the reform should be delayed or dropped.
The new regime – introducing pre-issue costs and processes for claims with a value at settlement, or following judgment, of between £1,501 and £25,000 – was originally meant to be implemented in April but was then delayed until October.
According to notes taken by ACSO at last month’s open meeting of the Civil Procedure Rule Committee (CPRC), Lord Justice Birss, the deputy head of civil justice, said there were “fundamental issues” with the rules that needed to be resolved before implementation.
Birss J had explained his scepticism that the rules would be in a position to be released in draft before this month’s meeting of the CPRC.
The judge “explained that there were fundamental issues, not minor tinkering” which needed to be addressed and it might be that publication of the draft rules would be limited to the pre-action protocol.
ACSO said Birss LJ reminded the committee that, if they missed the summer practice direction update, the new rules would have to be implemented in April 2025.
The most recently published minutes of the CPRC, from April, said the rules would have to be agreed at the June meeting to meet the summer update.
The April minutes recorded that “a significant amount of work has been achieved by the sub-committee” drafting the rules.
“In summary, this included and explanation of the low value clinical negligence fixed costs arrangements and interaction with the existing fixed costs system; vulnerability; sanctions; neutral evaluation and other issues, including the definition of ‘clinical negligence’ within in the new draft pre-action protocol.”
As there had already been several government consultations on the reforms, the revisions that had subsequently been made were “of the nature expected following consultation and as such, a further round of consultation is not considered necessary”.
In a letter to health minister Maria Caulfield, ACSO executive director Matthew Maxwell Scott argued that adhering to an “artificial deadline” of October was “unwise” and the implementation date should be pushed back to “at least April 2025”.
He said other FRC regimes had been introduced “at haste in recent years, creating consumer detriment and making immediate and sometimes even retrospective revisions to the Civil Procedure Rules a necessity”.
It was essential that any new regime was introduced only when both the CPRC and relevant ministers were “content and when there has been appropriate warning given to industry practitioners in order that they may make the necessary adjustments to their systems and training, but also to avoid unnecessary and costly satellite litigation”.
A sub-committee of the CPRC had been working on clinical negligence FRCs for some months, and, although the concept was familiar, it had long been warned that there were “particular dangers associated with fixing costs in this complex and sensitive area of law, not least in that cases of equal complexity may be of greatly varying values” depending on the circumstances of each claim.
“Our concern is that hitherto no proposals have managed to tackle this conundrum.”
Mr Maxwell Scott said that, if the CPRC could not approve the final rules until July, there would only be three months to prepare, which would be considered “well below the bare minimum” for there not to be negative consequences and significant risks.
“Given that even this now looks unlikely to be achieved, we therefore suggest that adhering to an artificial deadline of October 2024 is unwise, and that the implementation date should be pushed back to at least April 2025 to ensure that if FRC rules are to be imposed, that they will prove fit for purpose when they meet with reality.”
Mr Maxwell Scott said the Department for Health and Social Care should make a “thorough assessment of the additional resource” NHS Resolution would require to meet the new scheme rules and costs of implementation, which “may well show” that the costs would outweigh any proposed savings.
“Given the benefits that litigation can bring in terms of uncovering poor behaviour, and given improved defendant and claimant behaviour in recent times, there is also a strong case to be made for withdrawing the government’s FRC proposals altogether, and instead building on the success of joint settlement meetings, mediation and other improvements made in partnership with and commented positively on by NHSR.”
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