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Long Awaited Move Towards Fixed Costs in Clinical Negligence Claims Suggests New Ways of Reducing Costs in Other Types of Lower Value Claims - Simon Denyer, DWF LLP

05/03/17.It is right for insurers to look for likely impacts on costs issues affecting the handling of lower value injury and non-injury claims from the publication yesterday by the Department of Health of their consultation 'Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims'. We can see from the consultation how the thinking of one government department in the form of the DoH can influence another, the MoJ, even though the Justice Ministry is not formally involved in the latest DoH consultation.

And in what is presumably pure co-incidence, the DoH released their paper on the very day that Lord Justice Jackson's consultation on the proposed extension of FRCs closed, on which he is expected to report by the end of July.

Summary

Contrasting the proposed levels of FRCs for this type of claim with the FRCs currently allowed for RTA, PL and EL claims could suggest that the existing levels of FRCs recoverable are now looking too high, especially when set aside a desire to move to less adversarial processes. The option of a discount from FRCs following an early admission is also one which could have a broader use.

In relation to use of experts again as part of the use of a less adversarial approach, the move towards a starting point where experts are instructed jointly, and a cap is used limiting the costs of expert evidence generally, could well also be a wider interest.

The costs problem in clinical negligence claims

Looking at the problem of claims for very high levels of costs in low value clinical negligence claims reminds us of what used to be encountered in other types of injury claims before FRCs were introduced into most claims for RTA, EL and PL, as well as to the limited proportion of EL disease claims which enter the portal and settle inside it.

In financial terms the issue for the DoH can be looked at in one of two ways, that is either by reference to all clinical negligence claims, or alternatively just by referring to the smaller clinical negligence claims worth up to £25,000...

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