The Ministry of Justice has been threatened with legal proceedings over plans to include clinical negligence claims in the fixed costs extension, it has emerged.

The Association of Personal Injury Lawyers (APIL) sent the government a formal letter before action earlier this month ahead of a potential judicial review.

The MoJ issued a consultation on Friday – two weeks after receiving APIL’s letter – asking for views on aspects of the fixed costs reforms which come into effect on 1 October. Practitioners remain concerned that the rules as they are drafted include clinical negligence cases valued up to £100,000 which were never intended to be part of the extension.

In a email to members on Tuesday, APIL chief executive Mike Benner said the organisation had highlighted fundamental concerns, including the need for proper formal consultation on the inclusion of clinical negligence. The statutory instrument to bring in the changes was laid in parliament on 24 May and it states that clinical negligence claims will be moved to the new intermediate track – and therefore subject to fixed costs – ‘if breach and causation have been admitted’.

But Benner pointed out that the rule as drafted does not specify when those admissions must be made. ‘If they are not made until late in the proceedings, a solicitor will have had to undertake a significant amount of work on the case, only to find that it is then allocated to the intermediate track and fixed costs are applied which don’t cover the costs of the work undertaken,’ he said. ‘This creates a very real risk that solicitors will not take on clinical negligence cases of this value at all.’

The letter before action also raised concerns that the new rules do not allow fixed costs to be recovered from inquests or applications to restore a company to the companies register for the purposes of claiming compensation. APIL has called for fixed costs to be made available in these cases and has already provided alternative drafting.

The government said its consultation followed issues being raised by stakeholders in response to the rule publication.

The MoJ wants views on whether an early admission of liability should be required to push clinical negligence into fixed costs. It also asks about inquest costs, whether costs on assessment should be fixed and whether to update the fixed trial advocacy fees for inflation.


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