Radical reform of costs in clinical negligence cases…well not quite, and not yet

Lord Justice Jackson has just published his report on fixed recoverable costs (FRC) and it is anticipated that at some stage in future FRC will apply to costs in clinical negligence claims valued at up to £25,000, although the finer details for clinical negligence cases will need to be worked out between claimants’ representatives and defendant’s representatives.

At chapter 8 on Clinical Negligence Lord Jackson states as follows:

“I recommend that the Civil Justice Council should in conjunction with the Department of Health set up a working party, including both claimant and defendant representatives, to develop a bespoke process for clinical negligence claims initially up to £25,000 together with a grid of FRC for such cases.”

This is good news in that there is appreciation of the potential problems that fixed costs may bring. However, representatives for defendant organisations still maintain that the claimant’s legal costs should be more proportionate to the compensation paid and FRC should apply to all cases up to £250,000.

Action for Victims of Medical Accidents (AvMA) responded to the report with its concerns about the effect of the proposals on patient safety as well as access to justice.

The concern is that a substantial number of clinical negligence cases involve damages of less than £25,000. Such claims include deaths of newborns and cases involving the elderly. Britain is ranked 33rd out of 35 in the developed world for its still birth rates.

Patient support groups are concerned that with patients facing legal bills they cannot afford and being unable to find a solicitor willing to take on their case that there will be missed opportunities for learning from mistakes within NHS maternity units.

Families who lost loved ones at Mid Staffordshire may well have been denied justice under any fixed costs regime as the average pay out to the 120 families who claimed was less than £9,000.

At present, it remains to be seen how the government will treat the report. So there is further uncertainty as there is still no timescale for implementation.

As specialist lawyers dealing with such claims we await the outcome with trepidation.


This is not legal advice; it is intended to provide information of general interest about current legal issues.


Isabel Bathurst

Associate, Personal Injury and Clinical Negligence

Isabel joined Hart Brown as an Associate in June 2017 after spending five years as Partner at Pierre Thomas and Partners, working on high value...

Associate, Personal Injury and Clinical Negligence

Isabel Bathurst

Isabel joined Hart Brown as an Associate in June 2017 after spending five years as Partner at Pierre Thomas and Partners, working on high value cases with a foreign element including the leading case under Rome II of Syred v PZU and HDI which went to trial in 2015. This claim involved 2 passengers in a vehicle involved in an accident in Poland. However, the claimants lived in England and were able to bring their claim in the English courts but the court applied Polish law to the valuation of the damages awarded to each claimant.

Isabel has experience of both clinical negligence and personal injury claims, particularly catastrophic injury claims involving brain and spinal injuries, and as well as having a Diploma in Advanced Litigation, she is also an APIL Senior Litigator.

Most memorable case?
Syred v PZU and HDI (2015)

First album purchase?
Michael Jackson - Bad

Favourite film?
James Bond films

Favourite travel destination?

What would you have done if you had not become a lawyer?
I always wanted to be a nurse

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