Clinical negligence: Barristers used in these cases more often than is thought
The lack of detail in the government plans for fixed recoverable costs (FRCs) for lower-value clinical negligence cases is “extremely worrying”, with only six months to go before implementation, the Association of Personal Injury Lawyers (APIL) has said.
Meanwhile, the Bar Council has warned that the plan to exclude recovery of counsel’s and court fees for all cases but those involving children or protected parties would be “seriously detrimental” to access to justice.
APIL was responding to a supplementary consultation by the Department of Health and Social Care on disbursements in clinical negligence cases worth up to £25,000 under the FRC scheme it announced in September would be implemented in April next year.
It proposed that medical expert report fees and after-the-event insurance premiums covering the cost of those reports would be recoverable in all cases.
APIL said: “With only six months to implementation, the lack of detail in the government response to the 2022 consultation and in this further consultation is extremely worrying.
“The reforms proposed are a significant change in the way in which lower-value clinical negligence claims will be pursued.”
APIL said it had “significant concerns” with some proposals, such as “the blanket exclusion” of counsel’s fees from the scheme.
“The complexity of a claim is not directly linked to its value, and counsel’s advice may be required on certain aspects.”
APIL said there were other “essential disbursements” which should be recoverable in all claims, “namely professional medical records collation, sorting and pagination fees and stay of proceeding fees”.
Capacity assessments should be recoverable where there was a question as to whether a party has capacity or not, along with translator and interpreter fees, travel expenses and asset tracing where defendants were business owners.
Rather than excluding only stillbirth and neonatal deaths from FRCs, APIL said “all fatal claims should be treated with the same compassion and should be excluded from this scheme”.
Guy Forster, APIL executive committee member, commented: “Disbursements can be essential in order to gain the fair and just outcome needed for the injured patient. But the costs of many disbursements will not be recoverable under the current plans for the new regime.
“It is only fair and just that if the claimant is successful in their claim, they should be able to recover the reasonable costs of doing so and those costs should be shouldered by the wrongdoer.”
The Bar Council remuneration committee said in its response that the use of counsel in clinical negligence claims worth up to £25,000 was “more common than might be thought”.
Data produced by the Society of Clinical Injury Lawyers found that counsel was instructed in just over half of all cases, with mean fee per case of £3,400.
The committee said it did “not accept that there is evidence or reason to believe that counsel will be used inappropriately” if there was separate recovery of counsel’s fees. “That has never been the result of allowing the use of counsel.”
It went on: “Clinical negligence claims, even low-value claims, are often detailed, complex and difficult. They require specialist and experienced legal advice and expert evidence.
“The facts upon which such claims are based, the injuries involved, and patients’ individual circumstances are all highly variable; more so than in other areas of litigation where FRC schemes exist.”
The committee said these claims represented “a substantial proportion” of successful clinical negligence claims.
“Denying access to counsel’s advice in such a large volume of claims would be seriously detrimental to access to justice, and is unjustified, particularly when such access is permitted in other claims worth up to £25,000 and intermediate track claims which are less complex.”
We reported last month that the Civil Procedure Rule Committee warned the government in July about the difficulty of meeting the timetable for the new clinical negligence regime, and the newly published minutes of its October meeting show that the position has not changed.
The minutes of the discussion with officials said: “A serious risk exists to achieving the desired timescale for approval (at the December meeting for inclusion in the next mainstream CPR Update as part of the April 2024 common-commencement cycle): officials were urged to consider the timetable in the light of the comments made and the context of possible further consultation being necessary, liaison with HM Courts and Tribunals Service on the operational implications and the benefit of early notice to users, conscious that draft amendments are not currently in a suitable state for publication.”
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