PI Brief Update

All change but what change? Looking ahead to potential policy reforms for clinical negligence litigation - Amy Lanham Coles, Temple Garden Chambers

19/11/23. Consultations are rumbling on. As previously mentioned in this newsletter, the government is currently working towards policy changes to lower value clinical negligence claims (those valued between £1,501 and £25,000).

The original consultation concluded in 2022, with the government recently confirming their intention to bring in a fixed costs regime known as the “LDFRC scheme”. The policy intent is “to facilitate faster resolution of claims at a cost that is proportionate to the value of the claim” [Government Consultation Response, p. 9]. This policy aim is also being pursued more widely across the personal injury sector via the Extended Fixed Recoverable Costs regime and the recently closed consultation on Revisions to the Medical Reporting Process for Road Traffic Accident Claims.

The LDFRC scheme is set to come into force from April 2024, with amendments to be finalised in December 2023. However, it has come to light in recent weeks that the Civil Procedure Rule Committee (CPRC) has expressed concerns about this implementation deadline. There remains the prospect that the draft rules will be published without much of a lead in time, or alternatively the reforms will be delayed.

Note also that the original consultation also triggered a further consultation specifically on disbursements which remains open until 22 December 2023. The response by the Association of Personal Injury Lawyers (APIL) to this consultation on disbursements raises particular concerns about:

• the enduring lack of available detail as to the proposed reforms;
• reduced recoverability of disbursements for professional medical records collation; sorting and pagination fees; stay of proceeding fees; capacity assessments; pre-action disclosure applications; asset tracing costs and translator/interpreter fees;
• the blanket exclusion of counsel advice fees from the LDFRC scheme, save for in Part 8 claims relating to protected parties and children; and
• the inclusion of many fatal accident claims within the scheme.

The Bar Council response echoes concerns about the recoverability of counsel’s fees, noting they are “significantly too low” [p. 3]. Both APIL and the Bar Council note that value is not a helpful predictor of legal complexity and defend the reliance on specialist expertise in this field. Watch this space for future developments.

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