On 15 September, the Government response to the consultation on fixed recoverable costs in lower damages clinical negligence claims was published on www.gov.uk.
The rising costs of clinical negligence claims are of great concern to the Government. Costs have more than quadrupled in the last 16 years, with legal costs comprising a notable proportion of this rise. Claimant legal costs have risen sharply in lower damages claims—claims valued up to and including £25,000—and are often disproportionate to the value of those claims. These costs are funded from the core NHS budget and use resources that could otherwise have been spent on patient care.
The length of the legal process can also be disproportionate given the relative straightforwardness of many claims at this level, meaning that people who have been harmed are waiting longer to receive compensation.
The consultation response sets out a way forward for these lower damages claims: a set of fixed legal costs and a new streamlined process. Our aim is to facilitate faster resolution for claimants and defendants at a lower, more proportionate cost than under the current system for these claims. The scheme would only affect the amount of legal costs that claimant lawyers can recover from defendants following a successful claim, not the compensation that a claimant could receive.
We also believe that these reforms will achieve significant cost savings and make an important contribution towards addressing the overall rise in clinical negligence costs. The Department’s modelling indicates that introducing these reforms could realise cashflow savings to the NHS in England of around £500 million over a decade. These reforms would apply to care provided by NHS, non-profit and private healthcare providers in England and Wales, but would not apply in Scotland or Northern Ireland.
The responses to our 2022 consultation on introducing fixed costs in ‘lower value’ clinical negligence claims have been vital in helping us shape these reforms and informed some changes to the original proposals, in particular around strengthening the safeguards we have in place to protect claimants’ access to justice.
Alongside the response, I have launched a further consultation focusing on the specific issue of disbursements under the fixed recoverable costs scheme, inviting views on a proposed way forward on disbursements for all claims in the scheme. That further consultation will run for six weeks, ending on 27 October 2023. I welcome views from all interested parties on those proposals.
We will work with the Civil Procedure Rule Committee to ensure the smooth delivery of these reforms. Subject to agreement, the Government expect that legislation will be in place to implement the reforms by April 2024.