There has been much discussion in recent years about the introduction of fixed fees into the area of clinical negligence law and it is over two years ago since the report from Lord Jackson was published which advocated for fixed fees, but not without reform to procedures.
The Civil Justice Council recently published the findings of an 18 month study into the feasibility of a fixed fee regime for clinical negligence cases with a value up to £25,000. Whilst it was unable to come to agreement as to the level that costs should be fixed at, they did agree on various process reforms.
Lord Jackson in his 2017 report, remarked on the lack of clinical negligence cases that were allocated to the fast track, with the overwhelming majority being multi- track. Of note, 25% of cases settle pre-issue without requiring any expert evidence on either breach and causation or on condition and prognosis. There were other types of cases in which the costs tended to be lower, whether or not expert evidence was required. Examples of these were given as claims involving cosmetic clinics, allegations in respect of care homes and dental claims.
This led to the proposed development of a “light track” system for cases that will not require any expert evidence and a “standard track” for matters that will require the assistance of expert reports. Not all lower value clinical negligence claims are suitable for this process, exclusions are due primarily to the limitations of the FRC scheme, e.g. value (nothing over £25,000 can be considered); complexity, such as multi-defendant claims; or sensitivity, such as for stillbirth claims.
The light track (LT) system
- The LT will deal with matters that will not require any expert reports on breach or causation.
- Cases are to proceed in the LT if the claimant believes that liability is unlikely to be disputed and that the case suitably fits the criteria.
- The claimant must send a letter of notification, which is to be accompanied by medical records – to be collated, sorted and paginated by the claimant, an explanation of the basis for the case being in the LT and any associated documents (such as an SI report) and details of losses and any accompanying evidence.
- Limitation is suspended on entry into the FRC scheme, unless the defendant raises limitation as an issue within 21 days of service of the letter of notification. Limitation will then remain suspended until 8 weeks after exit from the FRC scheme.
- The defendant has 8 weeks to respond to confirm that they will settle the case on a full liability basis failing which the claim will move to ST.
- If medical evidence is required for quantum, the claimant will instruct on a joint basis.
- A case will proceed to mandatory telephone discussion/stocktake and if settlement cannot be reached to an Early Neutral Evaluation process.
- Timelines must be adhered to or the case moves to ST.
The standard track (ST) system
- A LOC will still be served by the claimant but must be accompanied by medical records – to be collated, A LOC will still be served by the claimant but must be accompanied by medical records – to be collated, sorted and paginated by the claimant, experts’ reports on breach and causation, witness statements, any separate report on condition and prognosis, details of losses and an offer.
- Limitation will be suspended on the same grounds as outlined above.
- The defendant then has a period of 6 months to either admit liability, accept the claimant’s offer or reject it and counter offer, or to serve a LOR denying the claim. The LOR must be served with the same supporting documentation as required with the LOC.
- A mandatory telephone conversation/stocktake must take place between parties after 4 weeks of the delivery of the LOR, unless the claimant delivers a right to reply, which, must be served 6 weeks after the LOR.
- If the parties fail to reach an agreement at the discussion/stocktake, the case then moves to MNE (Mandatory Neutral Evaluation). The parties have 2 weeks to select a specialist clinical negligence barrister from the agreed panel. The evaluator will make an evaluation no more than 6 weeks later.
The sequential exchange of experts’ reports on breach and causation is a key part of the recommendations for the ST, where it is likely liability will be in dispute. The MNE would be carried out by a specialist barrister of a minimum level of experience selected from a pre-agreed panel. The evaluation would be a paper-based process. The evaluator would not have a role as mediator, but would be asked to produce a written opinion as to their assessment of the likely outcome on liability, quantum or both aspects as required. This evaluation would then be provided to the parties simultaneously. The outcome will not be binding on either party, however it has been suggested that cost consequences will apply to the party who rejects the evaluation and fails to obtain a more favourable outcome at trial.
There was no agreement reached as to what would be a workable level for fixed costs. The differential between claimant and defendant were laid out as follows, exclusive of VAT and disbursements:
|Table 4 – Standard Track Stage||Description||Claimant||Defendant|
|1||All steps up to and including stocktake||£6,000 plus 40% of damages agreed||£5,500 plus 20% of damages agreed|
|2||From stocktake up to and including neutral evaluation||£2,000 in addition to stage 1||£500 in addition to stage 1|
|Table 5 – Light Track Stage||Description||Claimant||Defendant|
|1||All steps up to 21 days after letter of response is due||£2,500 plus 25% of damages agreed||£1,000 plus 10% of damages agreed|
|2a||From 21 days after letter of response up to and including stocktake||£1,500 plus further 5% of damages agreed, in addition to stage 1||£500 in addition to stage 1|
|2b||From stocktake up to and including neutral evaluation||£500 in addition to stages 1 and 2a||£500 in addition to stages 1 and 2a|
It was agreed that MNE fees should be fixed, however a consensus as to the level was not reached. Similarly, an agreement over expert’s fixed fees was not reached, however the group considered that the problem may not be the rates that experts charge, but the increased costs incurred because of inefficient and unnecessary use of experts’ time. It was recommended that more efficient working practices when instructing experts may be a better way of reducing their fees.
While the group did not manage to reach agreement on a number of central issues, they did significantly narrow the gap on most issues and have formulated a new process that is likely to shorten the life cycle of claims and also will lower the legal costs of clinical claims and this is something that is welcomed by all parties involved. The report has now gone to Government with various ideas and proposals as to how they could resolve the outstanding issues and a further consultation is likely.
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If you would like to know more about this matter, please speak to your contact at Plexus Law:
Lesley Deane, Solicitor
T: 020 7220 5912 | E: firstname.lastname@example.org