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A few weeks to go and still no sign of clin neg fixed costs rules

The Department of Health and Social Care (DHSC) has not yet ruled out the introduction of fixed recoverable costs (FRC) for low-value clinical negligence claims in April – despite no rules being published.

However, it appears pretty much impossible to meet the implementation date the DHSC announced last September.

We reported soon after that the Civil Procedure Rule Committee had in fact warned the government in July 2023 about the difficulty of meeting the timetable, and the minutes of its October meeting showed that the position had not changed.

The minutes of the December meeting were published last week and simply said: “Senior Master Cook is to chair the sub-committee and work is ongoing. The matter is provisionally programmed in for a report to the February 2024 meeting.”

Meanwhile, the April CPR update has now been published and does not mention this scheme.

All the DHSC would tell Legal Futures was that it was engaging with the rule committee and the new rules would come into force “in due course”.

Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, said: “Clearly no new regime can come in for this April in the absence of the appropriate statutory instruments, so it’s absurd that this remains the government’s implementation date.

“We will not know until early March what, if anything, was discussed on this subject at February’s CPRC meeting, so once again this part of the legal sector must continue operating with uncertainty hanging over it.”

He noted that it was now almost nine years since the government announced proposals to fix costs in low-value clinical negligence cases.

“Since then, behaviours on all sides have improved, co-operation and mediation happen as standard and outcomes have improved as a result.

“Given that repeated efforts to find a compromise that could reduce friction but also protect the rights of the most vulnerable all ended in failure, it’s perhaps time that the government did the decent thing and announced it will no longer pursue this dated agenda.”

Guy Forster, a member of the Association of Personal Injury Lawyers’ executive committee, said: “The government could have used its power to delay the reforms, and amend and clarify the rules, six months ago, yet practitioners are being left to speculate with just six weeks’ until implementation.

“We requested a meeting with the DHSC to discuss our concerns about the alarming speed of implementation back in October. We also pressed for fatal cases to be removed from the scope of fixed costs, as any case in which a patient has died at the hands of the NHS needs more time and greater sensitivity than is afforded by the new regime.

“Given the lack of transparency about detail around the drafting of the rules and the uncertainty following the supplementary consultation on disbursements, we have written to the department to find out what the position is in terms of a timeframe for implementation. To date, we’ve had no response.”

Mr Forster said that, as the statutory instrument has already been laid for changes to the extended FRC regime April, “it is now unlikely that there will be time for lower-value clinical negligence fixed costs rules to come in at the same time”.

Sharon Allison, chair of the Society of Clinical Injury Lawyers, added: “It is very unfortunate for practitioners to still be in a position, less than two months before the planned implementation date, of not having any finer detail to work through how we may still work to provide access to justice for our clients.

“If the date is pushed back, then I sincerely hope that the extra time is used effectively to properly consider the continued feedback that government has had on the lower-value scheme to ensure that injured patients can continue to engage a lawyer should they wish to do so.”

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