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On 15 September 2023, the UK Government confirmed it will move forward with a Lower Damages Clinical Negligence Claim fixed recoverable costs scheme (LDFRC scheme). Implementation of the LDFRC scheme is currently scheduled for April 2024.
Here we highlight key aspects of the new system that will be particularly important for defendants to be aware of.
Background
Last year the Department of Health & Social Care (DHSC) consulted on proposals for a new scheme aimed at streamlining the process for clinical negligence claims valued from £1,501 up to and including £25,000. The aim being “to enable claimants and defendants to achieve faster resolution” of such claims “at a lower, more proportionate cost than under the current system”.
The proposals included the introduction of a new pre-issue claims process and mandatory fixed recoverable costs scheme. The UK Government has now published a detailed response setting out the new processes and framework.
UK Government response to the consultation: key changes
Key changes the LDFRC scheme will introduce include:
The LDFRC scheme will have two separate tracks. The expectation is for all claims to be progressed on the ‘standard’ track, unless certain conditions are met for the ‘light’ track.
The proposals for the streamlined process under the standard track set out what is to be included within the claimant’s bundle accompanying the letter of claim. This includes medical records that are collated, sorted and paginated; expert evidence on breach of duty of care and causation (maximum of three liability experts in different disciplines); and witness statements, limited to two and using the template. In addition, where applicable the bundle is to include a separate condition and prognosis report; details of losses together with supporting documentation, and a settlement offer.
Among the criteria for the light track are claims where “parties agree that no expert evidence on liability is required in respect of breach of duty of care and causation”. Claims that involve a ‘never event’ should also be progressed in the light track.
The claimant’s bundle in the light track is to include “an explanation of the basis for the case being in the light track and any associated documents (such as a serious incident report)” and medical records (collated, sorted and paginated). The bundle is to also include "details of losses and any accompanying evidence”.
The UK Government’s position is that suitability for the light track will always be “for claimants to determine”. Adding it is “for defendants to determine whether, by an admission of breach of duty, and an admission that the breach caused loss, including injury, the claim should proceed on the light track, or potentially transfer to the standard track”.
Failure by a defendant to respond to the FRC letter of claim within eight weeks for a claim initiated in the light track will mean “the claim will transfer and restart in the standard track”. Further, claimants will be entitled “to recover 5% of light track stage one costs on top of standard track costs”.
For claims within the standard track, if the defendant fails to respond to the FRC letter of claim within six months the claim will drop out of the LDFRC scheme. In the light track, the defendant must respond to the FRC claim notification letter within eight weeks.
Proposed fixed costs framework
The proposed fixed costs for the standard and light tracks, and proposed ‘bolt-on’ additional amount of £1,800 in claims that involve protected parties/children are set out in Tables 1 to 3 on pages 52 and 53 of the response.
Next steps
The intention is for the proposed LDFRC scheme to be set out in a new Protocol, together with amendments to the Civil Procedure Rules and practice directions, to come into force on 6 April 2024. The UK Government will submit draft rules to the Civil Procedure Rules Committee for consideration.
In conjunction with the consultation response the DHSC launched a supplementary consultation on disbursements in lower damages clinical negligence claims. The intention being to address calls for the government to “describe in more detail proposed arrangements for disbursements generally under the FRC scheme, or arrangements for each disbursement type”. The consultation runs until 27 October 2023.
Comment
The proposed LDFRC scheme sits outside the package of reforms extending the FRC regime from 1 October 2023 for most civil claims valued up to £100,000 (including certain clinical negligence claims). However, the UK Government response document provides that the intention is for the LDFRC scheme “to operate with these reforms”.
Ahead of implementation, sufficient time for both claimant and defendant representatives to make any necessary adjustments to existing systems and processes will be key. With the intended date for implementation currently only six months away, all concerned will require sight of the new rules, Protocol and practice directions as soon as possible. We query whether the April deadline is tight and whether claimants will serve Letters of Claim ahead of that deadline to avoid fixed recoverable costs.
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United Kingdom