No Agreement Reached on Fixed Recoverable Costs in Clinical Negligence Claims – A Warning Sign for EL/PL Disease Reform?

Last week, the Civil Justice Council (CJC) published a Report: FIXED RECOVERABLE COSTS IN LOWER VALUE CLINICAL NEGLIGENCE CLAIMS, on the possible introduction of fixed costs in clinical negligence claims, up to the value of £25,000.[i]

The CJC Working Party, chaired and vice-chaired by Andrew Parker [former President of the Forum of Insurance Lawyers (FOIL)] and David Marshall [former President of the Association of Personal Injury Lawyers (APIL)], respectively, disclosed that:

‘... the majority of the working group has been able to agree on some things, but not to conclude an agreement on the level of fixed recoverable costs. In the end the difference between the positions of the claimant and defendant groups on the level of costs is not a large one, reflecting the efforts on both sides to come up with realistic proposals and to do their best to narrow the gap. It is to be hoped that this report will form a meaningful basis for further consultation by the government’.

Pulling back the veil of semantic language, however, the long and short of this Report is that the parties have not yet reached a workable compromise and require more time.

Is this a precursor to friction in future debate over the introduction of fixed recoverable costs across the fast track, including a new process and separate grid of costs for noise induced hearing loss (NIHL) claims, valued below £25,000?

We last reported on the Government’s progress with Sir Rupert Jackson’s fixed recoverable costs proposal, in edition 269 of BC Disease News (here).

At the time, the Association of Costs Lawyers (ACL) criticised the Government for transposing figures that were ‘nearly two years out of date ... based on just one law firm’s sample of cases’ and called for a ‘much more rigorous statistical base’. One would imagine, therefore, that the answer to the loaded question above, is ‘yes’.

The Ministry of Justice (MoJ) is expected, sometime in the very near future, to publish a Response to the Government’s Consultation, which closed in June 2019.

Readers can expect detailed analysis of this publication, in due course.


[i] Neil Rose, ‘CJC group fails to agree fixed costs for clin neg cases’ (16 October 2019 Litigation Futures) <> accessed 17 October 2019.

John Hyde, ‘Claimant and defendant sides fail to agree on clin neg fixed costs levels’ (17 October 2019 Law Gazette) <> accessed 17 October 2019.