Lawyers on both sides must have a say on the direction of the regime. But the success of fixed fees will rest on whether the litigation authority can break its habits.
When the Department of Health finally published its consultation on fixed costs for clinical negligence claims this week, the first reaction of claimant lawyers was relief.
The DoH had, as hoped, pulled back from its original £250,000 damages threshold, to a more workable £25,000.
Was the quarter of a million limit ever really part of the plan – or just a dagger at the neck of claimant lawyers to encourage co-operation with a lower figure? We will never know.
But the consensus among lawyers who act for injured patients seems to be that £25,000 is the right level to attempt a fixed fee regime in medical negligence claims.
Reaction on the Gazette website suggests that the level of the fees being put forward is a big worry for claimants.
The DoH suggests a range of methodologies for calculating the fee, but none of the final sums would be described as generous. Given that the lower the fees, the more savings that will be made for the NHS, this is not exactly surprising.
But fees aside, those who represent injured patients have some other important concerns. Some cases are simply not suitable for fixed recoverable costs; for example because they are too complex, or because although they are important cases, they tend to have relatively low damages.
The biggest cases in financial terms are those where a patient is left facing huge costs for future care. That is why claims on behalf of babies who have suffered negligent treatment during birth - and may face a lifetime of around the clock care, for example - are where the NHS spends the most in damages.
But there are many other important cases where damages will be a lot lower, but it is still vital that claims can be brought, and negligent care can be held to account. Claims brought by elderly patients, for example, will attract lower damages due to shorter life expectancy. Claims for stillbirth, or other fatal claims, will also be worth less in financial terms, but are extremely important.
How these types of claim are treated will be crucial, and the consultation does ask for views on what exemptions should be made to the scheme. It suggests that child fatalities may be excluded from the fixed costs regime, and also claims where more than two experts on each side are needed, which is taken to be an indication that the claim is complex.
Lawyers on both sides have until 1 May to respond to this consultation, and I would urge them to do so.
This is an area of the law where feelings run high, and there is deep mistrust on both sides. The NHS is fiercely protective of health service money and wary of spurious claims. It is often criticised as uncooperative and obstructive, so the operation of the new CPR and protocol that will accompany the fixed costs regime will be essential.
There must be every incentive for the NHS Litigation Authority as a defendant to exchange information early, and admit liability where appropriate. But some habits may be tough to break.
The success or failure of the fixed costs framework will ultimately rest on whether or not the NHSLA can successfully change its spots.
Rachel Rothwell is editor of Litigation Funding magazine