Far from ‘fixed’ – changes to Fixed Recoverable Costs continue

Authored by ARAG Claims Legal Counsel Hector Stamboulieh

While most clinical negligence cases still remain outside the Fixed Recoverable Cost (FRC) regime following the broad expansion that was introduced at the start of this month, it doesn’t look like they will escape much longer.

Just as the profession was making its final preparations for the changes brought in on October 1st, the Department of Health & Social Care announced further measures that it plans to introduce in April 2024.

The announcement came hot on the heels of a hastily launched consultation addressing some of the many issues raised by various parties since the October changes were announced.

The government’s latest plan to address the cost of clinical negligence claims was revealed just days after the latest consultation closed.

The new FRC regime applies to cases in which proceedings have been issued on or after October 1st and did bring some clinical negligence cases into a new intermediate track for claims valued between £25,000 and £100,000, but only where both breach of duty and causation have been accepted by the defendant.

The absence of timeframes for such admissions clearly creates the potential for defendants to game the system by accepting liability at the last minute.

Overall, these cases may not represent a huge share of medical negligence claims and the reforms may even push defendants to an earlier admission of liability in some cases. But they create yet more uncertainty, especially over claims valued around that £25,000 threshold beneath which FRCs still do not apply.

Only in April, under the more recently announced plans, will FRCs apply to clinical negligence cases under the £25,000 threshold.

ARAG has made repeated representations and responded to successive consultations on FRCs, stressing the risk such reforms pose to access to justice. Like SCIL (the Society of Clinical Injury Lawyers), AvMA (Action against Medical Accidents) and APIL (the Associaton of Personal Injury Lawyers, we have serious concerns about the impact that FRCs will have on clinical negligence claimants.

While it has long been clear that some reform is both inevitable and warranted, the repeated attempts to fix costs without fixing the process around clinical negligence claims have slowly eroded fair and equal access to the justice system for people who have already suffered at the hands of the health system.

ARAG will adapt, as we always have in the face of successive changes to the legal landscape that have continued since we started operating in the UK. We will always stand up for those who might otherwise be unable to achieve justice.