Clinical negligence: Minor alterations to proposals
The government has finally confirmed that fixed recoverable costs (FRC) for low-value clinical negligence claims that settle pre-issue will come into force in October 2024, six months later than planned.
The initial start-date of April 2024, announced last September, passed without any official comment except for indications in the minutes of the Civil Procedure Rule Committee.
Yesterday, the Department of Health & Social Care (DHSC) published the outcome of the supplementary consultation it issued in September on disbursements.
It said that, due “to the complexity of the reforms, the time needed for the CPRC to fully scrutinise the proposals and to allow sufficient notice to be given to the sector to prepare for these changes”, the intention now was that the changes would be implemented in October 2024.
This will see the proposals in the supplementary consultation implemented. Medical expert report fees and after-the-event (ATE) insurance premiums covering the cost of those reports will be recoverable in all cases, while fees for counsel’s advice will not unless a child or protected party is involved.
The response said: “Although we do not agree that expert fees, ATE premiums, or the recoverable amounts for these should be capped at this time, given uncertainty around the impact this could have on the provision of necessary medical expert evidence for these claims, we will monitor the costs of these items as part of the post-implementation review of this FRC scheme…
“Taking into account the range of views expressed by respondents and a limited set of data presented on this issue, we remain unconvinced of the case that the need for counsel advice in the lower damages value bracket is sufficiently strong to provide for its recoverability as a disbursement across all claims in this FRC scheme, which relates only to the pre-issue phase.”
The response said the wording around disbursements for expert fees “will make clear that associated costs of engaging with the claimant and their legal representatives in the production of the expert report are included alongside the cost of the report itself in the recoverable disbursement”.
This looks like a bid to pre-empt challenges to the agency element of a medical report fee, which is an ongoing issue in personal injury cases.
The DHSC has modified its plans by allowing the recovery of court fees for a part 8 application for pre-action disclosure, “to ensure that parties are able fairly to obtain evidence such as medical records needed to pursue their claim in a timely manner”; and to allow recovery of disbursements in relation to applications for a stay, in addition to disbursements relating to court fees to issue proceedings, where there are risks associated with limitation.
“We have not seen any other court fees in the pre-issue stage that represent a substantial cost requiring a recoverable disbursement provision,” it added.
The rule will clarify too that the regime will not extend to inquest costs and disbursements which have been incurred in claims which are subject to FRC. They will be recoverable “to the extent that they would be in clinical negligence claims not subject to this FRC scheme”.
The DHSC rejected calls for other types of disbursements to be recoverable, such as pagination: “While we agree that claims involve, and should involve, the pagination of evidence bundles, we believe this can reasonably be achieved without classifying that activity as a disbursement, for these lower damages claims, or providing for recoverability.
“We would not support the idea that translation or tracing services should be separately recoverable as disbursements, since they are not often integral to lower damages claims in the pre-issue stage and, on the occasions where they may be required, they can be provided for within the existing fixed costs envelope.
“We will monitor the use of disbursements in relevant claims as part of the post-implementation review and consider, at review, whether the position on recoverability across all claims remains appropriate.”
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