The news that fixed recoverable costs for lower-value clinical negligence claims will not, as the government promised, be happening this month came as no surprise.
Plans to cap costs on most claims up to £25k were announced by the Department of Health and Social Care in September.
But there has been radio silence on the reforms – and how they might actually work – ever since.
Even now, mid-way through the month they were supposed to be implemented, the delay was not announced but rather buried in the minutes of last month’s Civil Procedural Rule Committee (CPRC).
Ministers failing to stick to their own timetable is nothing new. The extension of fixed costs to cases up to £100k was delayed not once but twice before it was finally implemented– 12 months later than planned.
It does, however, beg the question of how likely this will be to go ahead in October with a general election and likely a change of government on the horizon.
What does all this mean for the market?
Business as usual is what this means for the market at present.
Without knowing the details of the pre-action protocol – which the same CPRC minutes say has not even been drafted yet – law firms cannot prepare.
A few have tried, by changing their retainers or taking on extra work before costs shrink, but the majority are all too used to the uncertainty and are fairly sanguine about the situation.
I don’t believe a change in government will halt the reforms, although what’s in the small print may change. Will it change the make-up of the market? More likely.
Some of the more traditional firms have already indicated they will stop taking on lower value work but, as we have seen in the motor market, volume players will plug the gap.
The market is smaller than it was – just shy of 15,000 clinical negligence claims were recorded last year, a modest increase on 2022 but down on the 17,500-18,500 of pre-pandemic years, according to data from the Compensation Recovery Unit. With the continuing pressures on the NHS, however, I think we are likely to see numbers rise.
What do law firms need to know now?
In an ideal world, I would like to see the protocol published a full 12 months ahead of implementation. This would give law firms adequate time to prepare and find a way to continue supporting the vulnerable victims of clinical negligence who should be at the heart of any decision-making.
This should include a definitive list of fees and what is and isn’t included. For example, it is still not known definitively whether the cost of expert witnesses is within the scope of the reforms.
Lawyers need details of likely time frames and what safeguards will be in place to ensure that defendants make efforts to keep to timetables too. Crucially, they also need to know if there will be any impact on ATE insurance.
Looking ahead
If I was a gambling man, I’d bet on the reforms being implemented in April 2025. But what I would like to see is the government focus on solving the real issues, such as chronic underfunding and understaffing of the NHS, that contribute to negligence in the first place.
Clinical negligence lawyers are specialists who do an enormous amount of due diligence at the outset to take forward only cases where genuine negligence has occurred. The cost of weeding out spurious cases is borne by the claimant side and that is another point I feel has been lost.
As the saying goes, if it ain’t broke, don’t fix it. The current system of legal redress works, it is the NHS that needs help.