A working group set up to explore the feasibility of fixed recoverable costs for clinical negligence has found claimant and defendant factions unable to agree on several key issues.
In a report published by the Civil Justice Council, the group said both sides ‘came close’ to agreeing fixed costs figures for claims valued up to £25,000, although there was common ground on how any scheme should be shaped overall.
For claims on the standard track, claimant representatives wanted £8,000 costs plus up to 40% of the damages agreed, whereas defendant bodies settled for £6,000 costs plus 20% of damages. For more straightforward claims on the light track, defendants were prepared to fix costs at £2,000, but claimants wanted £4,500.
The report concluded there was ‘room for improvements’ to the claims process pre-issue. The recommended fixed costs scheme, which excludes cases likely to be complex or sensitive, would be built around limited medical records and exchanges of experts’ reports and witness statements. Claimants in their letter of claim would disclose their case along with an offer to settle, while defendants’ letter of notification would contain more information on alleged liability and quantum. The scheme would include a mandatory stocktake and discussion if the case cannot be settled after the defendants’ reply, with mandatory neutral evaluation if the case has still not settled by then.
While the report suggested some agreement over the fixed costs scheme, the report noted continuing disagreement on exclusions from it, especially fatal claims. The recommendations also represent the majority view, with some members of the claimant faction on the working group not accepting them.
In a further sign of divisions within the group, there was no material progress on the level of experts’ fees or on after-the-event insurance premiums. The use of single joint experts was not supported.
The report concluded that the government will now need to decide which fees to adopt, although a ‘cautious approach’ is recommended.
The working group consisted of an inner ‘core’ and a wider group of interested parties. It was chaired by Andrew Parker, a former president of the Forum of Insurance Lawyers, with former APIL president David Marhsall his vice chair.
Writing in his introduction, Parker said: ‘As will be clear from this report, the majority of the working group has been able to agree on some things, but not to conclude an agreement on the level of fixed recoverable costs. In the end the difference between the positions of the claimant and defendant groups on the level of costs is not a large one, reflecting the efforts on both sides to come up with realistic proposals and to do their best to narrow the gap. It is to be hoped that this report will form a meaningful basis for further consultation by the government.’
The Society of Clinical Injury Lawyers tweeted: