(Estimated reading time: 2 minutes 28 seconds)
It would hardly come as a surprise to most that the introduction of fixed recoverable costs to low value clinical negligence claims is likely to be delayed further. However, that is where we find ourselves. Below we look at the current situation and consider likely further delays to come.
Where are we now?
Most in the industry will know by now that the introduction of fixed recoverable costs (FRCs) for clinical negligence claims valued at less than £25,000 has been planned for some time. It was initially scheduled to be implemented in April 2024, with this being pushed back a further six months to October 2024 after announcements in May that more time was needed to prepare and scrutinise the proposals.
What can we expect?
It now transpires that the proposals are likely to be delayed even further, beyond October 2024. Lord Justice Birss noted in a meeting of The Civil Procedure Rules Committee that there were fundamental issues in relation to the proposals as they currently exist, which require more than minor adjustments to remedy.
Whilst simultaneously noting that progress had been made in relation to the drafting, Lord Justice Birss made a point of alerting the committee that, should the summer practice direction update be missed, the changes would not be able to be implemented until April 2025. The issues which appear to remain make the latter a more likely eventuality.
To add further uncertainty to an already foggy situation, political changes may also have a part to play. With a new government having been elected very recently, the profession can only hold its breath to see whether the changes happen or whether they are heading for the legislative long grass.
Wishful thinking?
To hope the proposals are scrapped in their entirety would be wishful thinking on the part of a FRC opponent. The general feeling amongst the wider profession is that the election could simply see the proposals be delayed further. When considering the comments of Lord Justice Birss, this would seem very likely.
Although further delay will be frustrating for many, a cautious approach would be preferable, rather than trying to rush through a FRC regime that is not quite ready, leading to potential retrospective revisions, which we have seen previously for other FRC regime changes.
It would be inaccurate to say the proposals have been free from substantial criticism and scrutiny, with some prominent industry organisations such as SCIL advocating the proposals are ‘fundamentally flawed’. Whilst steering clear of the debate exploring the merits and flaws of those proposals, it comes as no surprise that the proposals are likely to be further delayed.
Moving forward together
At Temple, we are always happy to share our long experience to help our coverholders and partners with their costs queries, including those to do with FRCs. Furthermore, we host webinars for our coverholders and partners in relation to the FRC regime changes. Recordings of these can be found on our website.
Please contact us with your observations on this topic or to discuss your ATE insurance requirements.
