Fixed costs in clinical negligence claims due in October 2016

This week Health Minister Ben Gummer MP dealt with ten written questions from MPs about clinical negligence. His answers reconfirm the Government’s intention to introduce fixed recoverable costs (FRC) from 1 October 2016 for these cases. Public consultation about options and models should therefore be expected fairly soon and certainly before Easter if the October implementation date is to be met.

The relatively high number of questions on this issue in a matter of days may well suggest a degree of organised campaigning by organisations and MPs who are sceptical of the merits of FRC. In any event, the Minister said that “FRC for clinical negligence is not a new concept” and referred to recommendations in 1996 (Lord Woolf) and 2009 (Jackson LJ) in support of their introduction.

He also confirmed that “there are no plans to limit the amount of damages awarded for clinical negligence claims”. In addition, it appears that the consultation will also consider “how behaviours can change in order to streamline and speed up” the handling of these cases, “focusing conduct by both claimants and defendants on what is required for a fair and proportionate resolution”.

The robustness of the Minister’s replies to these questions, and his clear commitment to implementing FRC this October, very much point to this administration finally bringing in scale costs two decades (ie a generation) after Lord Woolf’s initial recommendation. We expect a great deal of resistance among the claimant community and, once a firm date is set for implementation, an inevitable spike in cases notified in the weeks and months leading up to it.

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).


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