Fixed recoverable legal costs for clinical negligence claims under £25,000 – consultation begins

On Monday 30 January the Department of Health published its long-awaited consultation paper on introducing fixed recoverable costs for clinical negligence claims. These would be mandatory for all clinical negligence claims (i.e. applying to claims arising in the health service as well as in other/private treatment settings) valued between £1,000 and £25,000 and the consultation includes detailed costs figures.

Approximately 80% of all claims settled for damages against the NHS in England in 2015/16 fall within this range. It is also at these relatively lower levels of damages that the disproportionality of claimant legal costs appears at its greatest – the consultation reports that in these cases total claimant costs are more than double, 220%, the damages awarded. The consultation will close on 1 May 2017.

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Opportunity to revisit the law on material contribution not taken

The Privy Council (25 January 2016) handed down the judgment in Williams v The Bermuda Hospitals Board [2016] UKPC 4. It had been hoped that the Supreme Court, in its guise as the Judicial Committee of the Privy Council (JCPC), might take the opportunity to revisit the existing law on material contribution and causation, which some feel is in need of reform. This proved not to be the case, with the Privy Council upholding the Court of Appeal of Bermuda’s decision and dismissing the Hospitals Board’s appeal.

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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.

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