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'Serious risk' of delay to clin neg fixed costs extension

Fixed recoverable costs for low-value clinical negligence claims may have to be delayed beyond the government’s planned implementation date, it has emerged.

Newly-published minutes for October’s Civil Procedure Rule Committee reveal that a ‘serious risk’ exists to achieving the desired timescale for approval of new rules.

That would make it very difficult to implement the fixed costs extension in April 2024, as the Department of Health has previously indicated. Officials are being urged to consider delays in light of problems with signing off new rules, and in the context of possible further consultation being necessary. There will also need to be talks with HM Courts and Tribunals Services on the operational implications, while the situation with disbursements is also yet to be clarified.

The most likely scenario is that implementation could be delayed for at least six months.

When the Department of Health announced the extension of fixed costs for claims up to £25,000, it was made clear the intention was that new rules would come into force on the common commencement date for secondary legislation in April 2024.

Health officials attended the CPRC meeting and explained that the proposed scheme solely concerns pre-issue costs and processes for clinical negligence claims with a value at settlement, or following judgment, of between £1,501 and £25,000.

It does not extend into the post-issue phase, or apply to higher value claims, and there is no intent to extend the scheme in these ways.

The fixed cost levels and bolt-on amount for protected party and child claims have been increased, in part to ensure that access to justice safeguards are strengthened.

Arrangements for agreeing and conducting neutral evaluations, modifications to proposed sanctions, and a range of modest process changes, to improve the workability of the scheme, are also proposed.

A sub-committee was established to scrutinise the new rules for the fixed costs extension, with the aim of reporting back on progress at next month’s CPRC meeting.

Meanwhile, the committee is also looking at issues that have been raised in relation to the extension of fixed recoverable costs to most civil claims worth up to £100,000, which came into force on 1 October.

In particular, the minutes reveal, the issues of contractual entitlement to costs and length of expert reports are being considered for possible modification. The Association of Personal Injury Lawyers has issued judicial review proceedings, challenging – among other things - an apparent reversal of Court of Appeal case law which allows parties to contract out of fixed costs when there is a dispute in settlement agreements, in favour of agreeing that costs will be subject to detailed assessment. APIL says this would be a radical infringement of freedom of contract but the Ministry of Justice may look at amendments to see off possible court action.

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