It has now been confirmed by the Department for Health and Social Care (DHSC), that ‘Fixed Recoverable Costs’ regime (FRC) relating to clinical negligence claims will come into force in April 2024. FRC will apply to claims that settle pre issue for up to £25,000 damages, but has within the rules a number of exclusions which apply in certain types of cases.
The amount of costs now recoverable on behalf of the claimant for standard track work, are set at £7,000 plus 30% of the damages recovered. For light track claims (where liability and causation is admitted), the costs recoverable will be £3,250 plus £20.5% of damages.
The news has been met with trepidation and complaints from Claimant lawyers, but the DHSC remains committed to the implementation of the rules. It states that FRC and the new process“should facilitate quicker resolution so harmed people get compensation more quickly, make legal costs more proportionate and predictable, and make an important contribution to controlling rising clinical negligence costs for the NHS”.
There are of course exceptions to the rules that will see cases falling out of FRC, with those cases coming under the separate fixed costs regime which is being implemented in October 2023.
The FRC rules will only apply to cases worth up to £25,000 that are not litigated.If a claim is initially overvalued but subsequently settles within this range, the fixed costs will apply regardless. “It will therefore not be advantageous for claimants to unreasonably overvalue a claim at the outset,” the DHSC said.
Other exceptions to the rules include where there are 3 or more experts required in the case;the claim is made against more than one defendant where the allegations of negligence against each defendant are materially different; the claim arises from a still birth or neonatal death; and claims where limitation is raised by the defendant as an issue.
It has also been confirmed that Counsel’s fees will not be recoverable under the regime, unless a child or a protected party is involved.
However a glimmer of hope does remain for claimants and their representatives, in that the rules recognise the important of expert evidence, and the ability to provide claimants access to such evidence. The DHSC confirmed that medical expert report fees and after-the-event (ATE) insurance premiums indemnifying the cost of those reports, would be recoverable in all cases.
The important role of ATE insurance in facilitating claimants access to expert evidence has been highlighted, with ATE and the recoverability of the associated premium referred to as ‘imperative’ for all claims within the FRC regime.
The extension of the current Fixed Costs Regime will come into force on 1st October 2023, with the new FRC rules due to follow in April 2024.
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