Fixed recoverable costs (FRC) are not fit for purpose when it comes to low-value clinical negligence claims but introducing a streamlined pre-action ‘track’ to deal with them will reduce costs anyway, the Association of Costs Lawyers (ACL) has argued.
Responding to a Department of Health and Social Care consultation, the ACL argued that the proposed new process – which aims to speed up how these claims are handled – should be introduced on its own without FRC “to enable a full and proper analysis to take place as to efficacy of this proposal and to also consider the potential costs savings”.
It said: “The ACL believes that this will achieve the intended objectives as set out in the consultation whilst avoiding the implementation of a FRC scheme. The ACL considers that a FRC scheme is wholly inadequate when applied to clinical negligence claims due to the significant negative impact it will have on the access and administration of justice and certainly with claims involving vulnerable and protected parties.”
A survey of members found most believed costs would fall through implementing a new process: “There are concerns that FRC are never suitable for clinical negligence matters given how different each claim can be and the unique investigations that need to be conducted. An overwhelming majority of respondents considered that the FRC proposed are not fit for purpose.”
Should the government decide to go ahead anyway, the ACL questioned the level of costs, noting that the consultation failed to provide “any form of reasoning” behind the decision to opt for the FRC recommended by defendant, rather than claimant, representatives.
The ACL urged a “full and proper costs analysis” before the final FRC are decided. All Costs Lawyers surveyed said the proposed costs were such that they would restrict from the full investigation of claims, undermining access to justice.
Similarly, most members considered the small ‘bolt-on’ fee for cases involving protected parties/children to be inadequate, given the additional procedural steps that are required for the court to approve any settlement, as well as the additional care and expertise needed when advising vulnerable claimants.
Members were concerned more generally that insufficient fixed costs would lead to greater deductions from damages by lawyers to make claims economical to run. “This impacts the access and administration of justice due to claimants ultimately not receiving a sufficient level of damages.”
The majority of Costs Lawyers said FRC would impact their workloads; over a quarter of respondents said over 50% of their clinical negligence work would be affected by the proposals.
Kris Kilsby, the ACL Council member who headed up the working party that drafted the response, said: “Though we recognise that the government wants to reduce what the NHS spends on clinical negligence claims, this debate boils down to what is right for the injured person. These claims may be relatively low value, but they are not low impact and negligence victims need to be able to seek justice.
“Fixed recoverable costs are a very blunt instrument that may work in areas where the course of claims is relatively predictable – such as road traffic accidents – but not in a much more complex area like clinical negligence.
“Our members are experienced and knowledgeable about costs and are able to greatly assist the court to ensure that costs in such cases are kept to reasonable and proportionate amounts. Introducing FRC will remove this level of check and balance and could lead to unjust results in respect of costs recovery which could ultimately lead to an impact on access to justice.”
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Notes to editors:
Association of Costs Lawyers
The Association of Costs Lawyers (ACL) is a membership body representing and promoting the status and interests of Cost Lawyers in England and Wales. Founded in 1977, the Association was granted authorised body status in 2007 and is a front-line regulator, able to authorise its members to undertake the reserved legal activities of litigation and advocacy. In recognition of this new-found status, ACL changed its name from the Association of Law Costs Draftsmen in 2011. Costs Lawyers are regulated by the Costs Lawyer Standards Board. www.costslawyer.co.uk
The term ‘costs draftsman’ denotes an unregulated and unqualified person operating in costs and those who instruct costs draftsmen have no recourse to either the Legal Ombudsman or the Costs Lawyer Standards Board.