Fixed recoverable costs in clinical negligence claims
Will it happen and, if so, when?
It was thought that fixed recoverable costs (FRCs) in clinical negligence claims with a value of less than £25,000 would be introduced in October 2024. But, with the absence of any reference to them whatsoever in the recent Civil Procedure Amendment Rules addressing what CPR changes are due in October, we can say for certain it will not be coming in then. There is the possibility that such a FRC regime will be implemented in April 2025, but that is mere conjecture and nothing official has been said (or even implied) to that effect. So for know, we simply do not know. What we do know is that we’ve had a substitution of government from Conservative to Labour and whilst the Labour manifesto and campaign was predicated on a message of “Change” (and one would reasonably assume that might also extend to a change in direction on civil justice) nothing has been said on this topic by Keir Starmer and team.
But, what does such an FRC regime look like should it come in? Well, the Government’s Consultation Response indicated that:
➢ There will be a Light Track (liability admitted within 8 weeks) and a Standard Track (no liability admission within 8 weeks)
➢ There will be a mandatory “stocktake” by the parties prior to the issue of any proceedings where they will seek to narrow the issues and settle.
➢ Absent a settlement, the parties will either be required, or alternatively, will be encouraged (subject to the form the rules take) to engage in a Neutral Evaluation.
➢ A variety of triggers are proposed engaging sanctions. Sanctions to a Claimant are likely to be a 50% reduction in their fixed recoverable costs. Sanctions to a Defendant is likely to be a 50% increase in the Claimant’s damages.
The proposed claims process is intended to look like this:
Figure 1. Lower Damages Clinical Negligence Claims Process
Reproduced from: Fixed recoverable costs in lower damages clinical negligence claims; Pg. 86; September 2023
The Light Track like this:
Figure 2. LVCD Protocol: Light track, no further evidence process
Reproduced from: Fixed recoverable costs in lower damages clinical negligence claims;Pg. 88; September 2023
The Light Track costs applicable like this:
| Stage | Costs | Description of activity within FRC streamlined processes and maximum timeframe |
| Stage 1 (LT(A) to LT(B)) | £1,000 plus 10% of damages agreed | All steps up to 21 days after letter of response is due (the light track specifies this is a maximum period of 11 weeks from FRC claim notification letter) |
| Stage 2a (LT(B) to LT(C)) | £500 in addition to light track stage 1 | From 21 days after letter of response up to and including stocktake (the light track process specifies this is a maximum period of 1 week) |
| Stage 2b (LT(D)(NFE) to LT(E)(NFE)); or (LT(D)(FE) to LT(H)(FE)) | £500 in addition to light track stages 1 and 2a | From stocktake up to and including neutral evaluation (the light track specifies this is a maximum period of 8 weeks if no further evidence is required following stocktake; or 24 weeks if further (non-liability) evidence is required.) |
The standard Track is to look like this:
Figure 3. LVCD Protocol: Standard track process
Reproduced from: Fixed recoverable costs in lower damages clinical negligence claims; Pg. 87; September 2023
| Stage | Costs | Description of activity within FRC streamlined processes and maximum timeframe |
| Stage 1 (ST(A) to ST(D)) | £5,500 plus 20% of damages agreed | All steps up to and including stocktake (the standard track process specifies this is a maximum period of 38 weeks from FRC letter of claim) |
| Stage 2 (ST(E) to ST(F)) | £500 in addition to standard track stage 1 | From stocktake up to and including neutral evaluation (the standard track process specifies this is a maximum period of 8 weeks) |
| Suggested bolt-on cost (Protected party claims only) | £650 in addition to above stages | In recognition of extra work required in claims involving protected parties. Not applicable to non – protected party claims. |
As to Disbursements, the Government’s September 2023 Disbursements Consultation proposes that:
- Expert Report Fees – recoverable but provided they are reasonable and proportionate
- ATE Premiums – the part of the premium that relates to liability and causation reports will remain recoverable
- Counsel Fees – There will be no recoverability for Counsels’ fees pre-issue (save for Protected Parties and Children). Legal practitioners will be expected to subsume any Counsels’ fees in the fixed recoverable costs
- Court Fees – Recoverable but only where limitation in issue (save for Protected Parties and Children)
- Medical Records and Pagination – no recovery
- Inquest Costs and Disbursements – These are likely to be excluded from any FRCs regime following changes to the CPR at r.45.1(10).
- Other Disbursements – no recovery as the fixed costs proposed “in the full consultation response are sufficient to cover such costs”.
So there we have it. We have a sense of what the clinical negligence FRCs regime might look like as to both profit costs, disbursements and other expenses. There is still time for some (or all !!) of this to change and when such regime changes will be implemented is, as yet, unknown. But you can be sure that Kain Knight will keep clinical negligence practitioners appraised of developments as and when they occur.
30 August 2024
Nick McDonnell
Director & Costs Lawyer
Kain Knight Costs Lawyers
