(Estimated reading time: 3 minutes 43 seconds)
As most practitioners are already aware, an introduction of fixed recoverable costs for clinical negligence claims with a value of up to £25,000 was planned to start from 6th April 2024 and the consultation period closing on 22nd December. However, most recently it was announced that the planned implementation date might be delayed. In this article we take a close look at how the new process will operate – whenever it takes effect.
The new process:
Fixed costs will only apply to clinical negligence cases which settle at pre-litigation stage with settlement or judgment value between £1,501.00 and £25,000.00. The fixed costs regime will be applicable to all cases which were notified on or after 6th April 2024. Stillbirth and neonatal death claims are excluded from the new costs regime, note however that not all fatal accidents claim will be excluded.
Cases will be pursued under the standard track or light track process. Once the proceedings have been issued it will fall into the new Fixed Recoverable Costs regime on the basis of complexity/quantum and amount of expert evidence required.
On the standard track, a Letter of Claim will be sent to the Defendant. This should include medical records, expert’s report on breach of duty care and causation (up to 3 experts from different disciplines), witness statements (limited to 2 witnesses), any separate report on condition and prognosis and details of losses and supporting documents.
The Defendant should respond within 6 months, then the Claimant reply within 6 weeks or, alternatively, proceed to mandatory stocktake – or accept the Defendant’s offer. A mandatory stocktake and discussion must take place if case cannot be settled after Defendant’s response. At the end, neutral evaluation must be held within 4 weeks if the claim is not settled at the mandatory stocktake.
Light track bundles will include an explanation of the claim basis – with supporting documents, medical records, details of losses and accompanying evidence. The Defendant should then respond within 8 weeks with a full admission of liability. If not, the claim will continue under the standard track and restart within 8 weeks. Mandatory stocktake will normally take place within 4 weeks and, if required, there will be an opportunity to obtain further evidence which will then determine any further steps. Finally, a neutral evaluation must be held within 4 weeks.
New fixed costs levels
These will be as follows –
- For standard track claims – work costs will be £7,000 plus 30% of damages.
- For light-track claims – where liability and causation is admitted, the fee for all stages will be £3,250 plus 20.5% of damages.
- The additional bolt-on fee for protected parties has increased to £1,800 for cases involving Protected Parties and Children.
Disbursements:
The consultation is still ongoing with respect to disbursements and the consultation itself will close at 11.59 pm on 22nd December 2023. The consultation was reopened as a result of one question being omitted from the original survey. The government made it clear that consultation regarding disbursements only supplements the original fixed costs consultation.
As things stand, the government proposes the following approach to disbursements:
- Expert Report fees will remain recoverable.
- ATE premiums covering the costs of expert reports will be separately recoverable.
- Counsel fees in relation Part 8 approval hearings will be recoverable in relation to claims of Protected Parties and Children.
- Court fees in relation to Part 8 approval hearings will be recoverable in relation to claims of Protected Parties and Children.
- Counsel fees and court fees will not be recoverable, the only exception considered being the proceedings issue fee as a result of limitation.
The wording makes it specific that no other disbursements will be considered as recoverable.
Potential delay with introduction:
As a result of the additional consultation needed in terms of fixed recoverable disbursements for clinical negligence cases (together with establishment of a sub-committee of the Civil Procedure Rules Committee whose role is to scrutinise further proposed rules) it is now expected that there will be a delay in implementing the new fixed costs rules for at least another 6 months.
How we can help
At Temple, we are always happy to use our extensive experience to help our coverholders and business partners with difficult costs queries, including those related to fixed costs. Furthermore, we will be hosting a webinar for our coverholders and partners to give a final run-through of the impending regime changes.
Please call Matthew Best on 01483 514804 or email with your observations on this topic or to discuss your ATE insurance requirements.
