Kerry Underwood

CLINICAL NEGLIGENCE AND FIXED COSTS: POST 6

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You can now book onto my Fixed Costs Autumn Tour – here

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

Clinical Negligence

Clinical negligence is dealt with in chapter 8 of the report here, at pages 113 to 118.

Summary

It is recommended that there be a Fixed Recoverable Costs grid for all claims up to £25,000.00, the details to be determined by a joint Civil Justice Council/Department of Health working party and such grid to cover claims up to £25,000.00 in all tracks.

“Conclusion and recommendation

  1. Conclusion

6.1          Recommendation. I recommend that the Civil Justice Council should in conjunction with the Department of Health set up a working party, including both claimant and defendant representatives, to develop a bespoke process for clinical negligence claims initially up to £25,000 together with a grid of FRC for such cases.”

 

Thus no specific proposal is made as to the level of FRC in clinical negligence claims.

The aim of the proposed working party will be to develop a bespoke process for clinical negligence claims initially up to £25,000.00 with a grid of Fixed Recoverable Costs for such cases. (My italics).

That grid would cover 63.15% of successful claims.

Taking into account unsuccessful claims, where obviously no costs are awarded to the claimant, such a scheme would result in open costs, as compared with fixed costs, in 19.81% of cases, with just over 80% of cases resulting in no award or an award of £25,000.00 or less.

If, in due course, all claims up to £100,000.00 were included in line with other litigation, then that would leave 6.62% of cases subject to open costs recovery.

2.93% of cases result in awards or settlements of over £250,000.00.

These statistics are on pages 113 and 114 of the report.

It should be noted that LJ Jackson proposes an FRC grid for all clinical negligence claims up to £25,000.00 “regardless of whether they are suitable for the Fast Track, the Intermediate Track or the Multi-Track.”

This is significant. Few clinical negligence claims are allocated to the Fast Track, and the Intermediate Track is as yet an unknown quantity, so a FRC scheme limited to the Fast Track would leave nearly all cases subject to open costs. That is not going to happen. Value, not track, will determine whether or not the matter is subject to FRC.

Thus clinical negligence cases may be the first multi-track claims to be subject to FRC and may pave the way for other types of multi-track cases to be brought within FRC.

“Once delivered and implemented, in time it might be possible to extend the success of such an initiative to claims of somewhat higher value.” (Paragraph 5.4).

The report also says that a minority of clinical negligence claims valued at between £25,000.00 and £100,000.00 might be suitable for the new Intermediate Track.

An example given is of a case where the defendant admits breach and causation in the protocol period with only relatively straightforward quantum issues to be resolved.

Given the National Audit Office’s report in September 2017, and given that most defence costs in clinical negligence are paid by the state, I suspect that this will be the first type of work to be subject to FRC for all cases, whatever their value.

Timescale

Unlikely to be before April 2019.

 

Also see:

FIXED COSTS REPORT OVERVIEW : POST 1

FIXED COSTS AND THE BAR: POST 2

FIXED COSTS AND PART 36: POST 3

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

JUDICIAL REVIEW AND FIXED COSTS: POST 5

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Written by kerryunderwood

September 11, 2017 at 12:40 pm

Posted in Uncategorized

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