Healthcare Brief: market insights – October 2023

A summary of key developments relating to the personal injury discount rate in England and Wales, Scotland and Northern Ireland; fixed recoverable costs (FRC) for lower damages clinical negligence claims; and the extension of FRC to most civil litigation claims in England and Wales valued up to £100,000.

PIDR: recent developments in England and Wales, Scotland and Northern Ireland

Following its call for evidence to explore the option of a dual or multiple rate personal injury discount rate (PIDR) system, the Ministry of Justice’s response was published on 11 September 2023.

The MoJ confirming “the Government will not be recommending a policy position or deciding on whether a dual/multiple PIDR should be introduced at this time”. There is understandably divergence of opinion throughout the summary response document. However, a common theme within the responses is the need to avoid introducing uncertainty, additional complexity and cost, and delay. Alongside these, stakeholders have highlighted the risk of satellite litigation.

The next step is for all submissions to be shared with the newly formed PIDR Expert Panel that will advise the Lord Chancellor as part of the next PIDR review.

Having also recently issued a joint request for views on the PIDR systems in their respective jurisdictions, the Scottish Government and the Department of Justice in Northern Ireland are due to publish separate responses in mid to late autumn.

Contacts: Christopher Malla and Roger Davis

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Fixed recoverable costs: lower damages clinical negligence claims

On 15 September 2023, the Department of Health and Social Care (DHSC) confirmed it will be introducing a fixed recoverable costs system for clinical negligence claims valued between £1,001 to £25,000. The scheme is intended to come into force in April 2024.

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 government will submit draft rules to the Civil Procedure Rules Committee for consideration.

The DHSC has also launched a supplementary consultation on disbursements in lower damages clinical negligence claims 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.

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) – see below. However, the government response document provides that the intention is for the LDFRC scheme “to operate with these reforms”.

Contacts: Christopher Malla and Roger Davis

Related item: FRC scheme for lower damages clinical negligence claims: key changes and next steps


Fixed recoverable costs: claims up to £100,000

Fixed recoverable costs (FRC) now apply to most civil litigation claims in England and Wales valued up to £100,000.

However, just over two months before the rules came into force, the UK Government issued a consultation on the following issues:

  • Whether costs on assessment should be fixed.
  • Whether there should be fixed costs for Part 8 (costs only) claims.
  • The recoverability of, separately, (a) inquest costs and (b) restoration proceedings, and how this should be dealt with in the CPR.
  • The issue of providing for the recoverability of advocates’ preparation in the CPR, in cases which (a) are settled late or (b) are vacated.
  • Whether the fixed trial advocacy fees now in Practice Direction (PD) 45 of the CPR should be further uprated for inflation, and by how much.
  • Whether to make explicit in CPR 26.9(10)(b) in respect of clinical negligence claims, that an early admission of liability must be made in the pre-action protocol letter of response.

It is proposed that, assuming agreement by the Civil Procedure Rule Committee by December 2023, amendments could be included in the Civil Procedure Rules SI for implementation in April 2024.

Contacts: Christopher Malla and Lewis Thompson

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