The Government has accepted Jackson LJ’s recommendation that the Civil Justice Council (CJC), working alongside the Department of Health, should set up a working party to develop a bespoke process for clinical negligence claims initially up to £25,000 together with a grid of fixed recoverable costs for such cases.
It can clearly be seen from Jackson LJ’s 2017 report that this recommendation draws heavy influence from, if not seeks to replicate, the concept of a streamlined process and subsequent fixed recoverable costs grid developed for noise induced hearing loss (NIHL) claims. The overall aim being a stand-alone scheme catering for cases up to £25,000, regardless of whether they are suitable for the fast track, the intermediate track or the multi-track.
Jackson LJ [in his review of fixed costs] notably commented “why don’t you try cracking the process for these claims and make that more streamlined – if you can do that, then it’s fair enough to put a fixed recoverable costs regime on that”.
The move represents a considerable scale back from the £250,000 threshold initially suggested when the Department of Health began considering fixed recoverable costs in 2015. Whilst the appetite to fix costs was clearly evident [in some camps] from the outset, it was met with palpable resistance – the CJC describing it as “too rough and ready” in addition to providing an obstacle to access to justice.
Ultimately, it appears that the substantially revised threshold [£25,000] alongside the proposal of a streamlined process for such cases has proved persuasive – with ministers on the public accounts committee having now accepted Jackson LJ’s recommendation and that a working party be tasked with developing a streamlined process and fixed recoverable costs regime for low-value clinical negligence claims.
This seems another step toward to the inevitable conclusion that the recommendations of the July 2017 report will become a reality.