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Fixed recoverable costs for clinical negligence to come into force in October 2024

Fixed recoverable costs (FRC) for low-value clinical negligence claims that settle pre-issue will come into force in October 2024, the Government has confirmed.

The Department of Health & Social Care (DHSC) yesterday published the outcome of the supplementary consultation it issued on disbursements.

Medical expert report fees and after-the-event (ATE) insurance premiums covering the cost of those reports will be recoverable in all cases.

Fees for counsel’s advice in lower-value clinical negligence cases will not be recoverable under unless a child or protected party is involved.

The response said: “Although we do not agree that expert fees, ATE premiums, or the recoverable amounts for these should be capped at this time, given uncertainty around the impact this could have on the provision of necessary medical expert evidence for these claims, we will monitor the costs of these items as part of the post-implementation review of this FRC scheme…

“Taking into account the range of views expressed by respondents and a limited set of data presented on this issue, we remain unconvinced of the case that the need for counsel advice in the lower damages value bracket is sufficiently strong to provide for its recoverability as a disbursement across all claims in this FRC scheme, which relates only to the pre-issue phase.”

The response said the wording around disbursements for expert fees “will make clear that associated costs of engaging with the claimant and their legal representatives in the production of the expert report are included alongside the cost of the report itself in the recoverable disbursement”.

Legal Futures is reporting that this looks like a bid to pre-empt challenges to the agency element of a medical report fee, which is an ongoing issue in personal injury cases.

Recovery of court fees for a part 8 application for pre-action disclosure will be allowed, “to ensure that parties are able fairly to obtain evidence such as medical records needed to pursue their claim in a timely manner”; and to allow recovery of disbursements in relation to applications for a stay, in addition to disbursements relating to court fees to issue proceedings, where there are risks associated with limitation.

“We have not seen any other court fees in the pre-issue stage that represent a substantial cost requiring a recoverable disbursement provision,” it added.

Calls for other types of disbursements, such as pagination, to be recoverable were rejected by the DHSC.

It said: “While we agree that claims involve, and should involve, the pagination of evidence bundles, we believe this can reasonably be achieved without classifying that activity as a disbursement, for these lower damages claims, or providing for recoverability.

“We would not support the idea that translation or tracing services should be separately recoverable as disbursements, since they are not often integral to lower damages claims in the pre-issue stage and, on the occasions where they may be required, they can be provided for within the existing fixed costs envelope.

“We will monitor the use of disbursements in relevant claims as part of the post-implementation review and consider, at review, whether the position on recoverability across all claims remains appropriate.”


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