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Lord Justice Jackson’s report : ‘Review of Civil Litigation Costs: Supplemental Report – Fixed Recoverable Costs’ was published today.
The report runs to 135 pages plus appendices and, no doubt, the specifics of the report and LJ Jackson’s introduction to the proposals this morning at Chancery Lane will be considered, analysed and critiqued over the coming days.
The report represents a significant scaling back of LJ Jackson’s previous suggestion that fixed recoverable costs (“FRC”) could be applied to all claims up to a value of £250,000. Set out below is what jumps out on first reading.
In the context of personal injury claims the report proposes:
- a fixed grid of FRC for all fast-track cases (i.e. those with a value up to £25,000) which is to be reviewed every 3 years; and
- a new ‘Intermediate Track’ with a fixed grid of FRC for certain claims with a value between £25,000 and £100,000 (which can be tried in 3 days or less with not more than 2 experts on each side).
The proposed grid of FRC (page 106 of the report) in the context of the proposed Intermediate Track breaks the litigation down into stages (but not Precedent H phases) and separates out specific FRC for Counsel. The figures have been derived from an analysis of data, applying certain assumptions and following the application of certain formulae. Whilst this appears a logical approach, it’s clear that one size does not and cannot fit all.
Part 8 proceedings will be exempt from the Intermediate Track but Approval Hearing applications for settlement of matters involving children and protected parties are to be subject to FRC.
If that is the case then we must hope that processes can be streamlined for cases affected by fixed costs before they’re introduced. In order to be successful a FRC regime requires a fixed process to be workable because fixed costs do not reduce the work done by the lawyers.
In the context of clinical negligence claims, the report proposes:
- a ‘bespoke’ FRC scheme for clinical negligence claims is developed for claims with a value of up to £25,000; and
- an exemption from the Intermediate Track unless both breach of duty and causation are admitted within the protocol letter of response (however even then the complexity of the case could still justify exemption).
Arguably the fail to recognise the true impact that imposing FRC on clinical negligence cases with damages of £25,000 or less will have. Such claims could include stillbirths and child deaths; claims involving the elderly; and those for people with mental health and / or learning disability problems.
Whilst LJ Jackson seeks to provide reassurance that if FRC are introduced then these should be via a ‘standalone’ scheme developed in collaboration between stakeholders, a degree of caution must be exercised in relation to the impact of such proposals on patient safety and access to justice.
In the context of an NHS where previous CQC and Government reports have identified pervasive failures to learn from patient safety incidents, it is imperative that individuals and their families have access to justice; that the NHS can learn lessons and improve patient safety; and so that individuals are properly compensated.
Whilst I agree in principle that there must be a better way of dealing with lower value clinical negligence claims, it is still a case of one size does not fit all. Clinical negligence claims are usually complex; defendants can be slow to investigate and admit their failures – increasing costs on both sides; and the courts are too busy.
If the claims process is tackled head-on to improve these issues, which invariably result in clinical negligence claims being lengthy and labour intensive, then it ought to be entirely possible for costs savings to be made without any further erosion to access to justice.
In my opinion, there will be some cases that are simply not suitable for FRC and failing to pursue them will likely lead to injustice. At the very least, exemptions must be carefully considered and applied to cases that are particularly complex, or those that involve still-birth and bereavement (my earlier blog explores these issues further).
LJ Jackson has confirmed that any such changes should not impact on existing litigation as and when they are introduced. What is clear is that the impact of these proposals must be carefully assessed during the Ministry of Justice consultation period and prior to implementation.