The government has accepted the recommendation of Lord Justice Jackson that the Civil Justice Council take over the work to introduce fixed recoverable costs in low-value clinical negligence cases, meaning that a streamlined process needs to be agreed first.
Jackson LJ said in his report in July that the Department of Health and the Civil Justice Council should set up a working party with both claimant and defendant representatives to develop a bespoke process for handling claims up to £25,000.
“That bespoke process should have a grid of fixed recoverable costs attached. This scheme will capture most clinical negligence claims. Previous experience (for example, with noise-induced hearing loss claims) shows that it is possible for the ‘industry’ to come together and develop such schemes. There is sufficient good will on both sides to achieve that in the field of clinical negligence.”
Giving evidence on managing the costs of clinical negligence to MPs on the Public Accounts Committee in Parliament this week, Ministry of Justice permanent secretary Richard Heaton said: “The traditional view has always been that that’s been too difficult in this area because it is too complicated, you’ve got lots of experts, and a grid of fixed costs is just not going to work. And that was the sort of response my department and [the Department of Health] received to the consultation we worked on earlier this year.
“The Civil Justice Council said it’s too rough and ready, it’s going to get in the way of access to justice.
“Instead, Lord Justice Jackson said, ‘Why don’t you try cracking the process for these claims and make that more streamlined? If you can do that, then it’s fair enough to put a fixed recoverable costs regime on that’… That is a recommendation that I’m pleased to say that ministers have accepted and that’s what we’re going to do.”
The Department of Health first started considering fixed costs in clinical negligence in the summer of 2015 and earlier this year scaled back its ambition to capture cases worth up to £250,000 to a threshold of just £25,000.