Following any award of compensation to a Claimant, the Claimant’s solicitors are entitled to recover their costs and disbursements such as expert fees. In some cases, the costs being sought can be far greater than the damages awarded.

For this reason, it has been proposed that in lower value clinical negligence pre-action claims (claims valued up to £25,000), fixed recoverable costs should be introduced, in order to allow Claimants and Defendants to achieve faster resolution of ‘lower value’ clinical negligence claims at a lower, more proportionate cost than under the current system.

This cap on costs in lower value personal injury claims has been in place for some time and we have substantial experience in dealing with these claims.

It was proposed that this change would occur in October 2024, however, given that the Civil Procedure Rule Committee did not amend the rules as promised this summer, it remains to be seen exactly what is implemented by the current government both in terms of the cut off value for a fixed costs system and also the detail around any new costs regime.

In May 2024, the Department of Health and Social Care published an outcome of the supplementary consultation issued on disbursements. This allowed for the recovery of expert fees and ATE premiums, however, they “remain unconvinced of the case that the need for Counsel’s advice in the lower damages value bracket is sufficiently strong to provide for its recoverability as a disbursement across all claims in this FRC scheme, which relates only to the pre-issue phase.”

If introduced, these measures will certainly have an impact on claims costs overall. We anticipate that, although these rules have been delayed with the issue going back again to Department of Health and Social Care, there is an appetite to bring down the cost of claims for the benefit of consumers who pay for insurance and for the NHS where funds for clinical claims are diverted from clinical care. We will continue to monitor progress.

Medical malpractice insurance: mid-year review 2024

• Case law update
  
  • Holmes v Poeton Holdings Limited [2023]
  • Man v St George's University Hospital NHS Foundation Trust [2024]
  • Clarke v Poole and others [2024]
  • Spellman v Portsmouth Hospitals University NHS Trust [2024]
  • Healey v McGrath and Ramsay Healthcare UK Operations Ltd [2024]
  • PHJ v HMA (unreported)
  • Cases still to be heard: CCC v Sheffield Teaching Hospitals NHS Foundation Trust
• New damages guidelines published in April 2024
  
  • Sexual/ physical abuse claims
  • Technology
  • 10% uplift to account for future inflation
• Alternative Dispute Resolution becoming integrated into claims processes
  
  • Mediation in Low Value Claims
  • Alternative dispute resolution (ADR) consultation
• Discount Rate Review: what might happen?
• Expansion of the Damages Claims Portal (DCP)

Get in touch

Aiming to be the firm of choice for medical malpractice insurers and those who they cover, we advise and support on all aspect of claims, inquests and associated proceedings.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Ed Mellor or Sarah Bryant.