Government consultation for Fixed Recoverable Costs could have big implications for the Clinical Negligence sector

The Government’s consultation to introduce Fixed Recoverable Costs (FRCs) for injured patients’ lawyers, in cases of clinical negligence under £25,000 in compensation value, has sparked controversy. 

Fixed Recoverable Costs proposal

The proposal includes, as well as introducing FRCs in cases under £25,000, streamlined ‘standard’ and ‘light track’ processes, mandatory steps for claimants and defendants, and sanctions for not adhering to the scheme. 

Claims the proposal is not in the public’s best interest

While it is acknowledged that the Government proposal comes from a place of trying to save money for the NHS, and simplify claims for the public, the proposal has been widely criticised for not being in the best interests of the public, or even the NHS when it comes to learning and collaboration from cases of clinical negligence, which could be limited if less low-value claims are pursued. 

The charity, AvMa (action against medical accidents), has stated: “If lawyers are unable to claim for the time they spend overcoming denials of liability, injured people will not be able to get legal representation”.

Andrew Williams, Head of Insurance at Prosperity Insurance points out, similarly, how commercial viability will be affected for the legal profession and could result in fewer low-value claims.

“The biggest implication for our clients if these proposals are implemented is they will likely have to take on less low-value claims due to the fixed timeframes and fixed-rate costs – as it just won’t be commercially viable to take on lower claims if they have a level of complexity which takes more legal hours.”

Proposed ‘standard’ and ‘light track’ for clinical negligence claims

The consultation document proposes ‘standard’ and ‘light track’ claims processes with a maximum duration of 44 and 20 weeks respectively. However, data for medical negligence claims, as of November 2021, shows that currently, the average time for a claim of under £25,000 to settle is 1.3 years.

Andrew talks about how these proposed ‘track’ times could potentially affect the viability of more complex cases. 

“The average medical negligence claim under £25k currently takes over a year and the new proposal for light track is just 20 weeks maximum. It is very likely firms will only take the kinds of claims that are very straightforward. This also has the added effect of increasing the amount of screening by firms, before they can even take on clients to assess the viability of the claims.”

The positive and negative implications for consumers

The impacts on the legal professionals’ capacity to take on lower-cost cases under the proposals are clear, but The Association of Consumer Support Organisations sums up the potential implications of the proposal for consumers, which are not all in the positive when it comes to being in the public interest.

Positive implications include: 

  • Simplified process
  • Faster speed of redress for claimants
  • Certainty on costs
  • Removal of secondary cost litigation

Negative implications include:

  • Barriers to access to justice, as claimant law firms have said they would be less inclined to accept “borderline” complex low-value cases as not commercially viable.
  • Unaffordable screening of cases
  • Low value does not necessarily mean low complexity 
  • Lack of accountability as the patient as a consumer should be at the heart of all reforms and the narrow focus on cost may not aid patient safety

Responding to the proposal

Consultation for the proposal was closed on 24th April but responses from those working in this industry were encouraged by the Department of Health and Social Care.

The overwhelming response from claimant law firms, charities and patient organisations alike has been that the proposals would be more detrimental than helpful to claimants.  

CILEX have argued that fee caps have the potential to penalise victims as even the simplest claim could require significant resourcing and evidence gathering. 

Furthermore, The Association of Personal Injury Lawyers accused the government of a “breath-taking display of self-interest” and have stated that the measures proposed would put “unfair restrictions on patients, bereaved families and their representatives”.

Following this, the Government will now analyse responses and publish the consultation response document. If proposals are implemented, then those proposals will need to be approved by the CPR (Civil Procedure Rule) Committee.

Continued support at Prosperity

“While there’s not much we can do to help the outcome of the proposal, we can continue to support our clients with their screening processes and help them to obtain justice for claimants and the appropriate compensation,” says Andrew.

Any legal clients or professionals concerned by the proposed changes and how this may affect their practice, or need support with screening processes, should contact our expert medical negligence team on 0800 524 4235, or email info@prosperityinsurance.co.uk.