Still Radio Silence on Clinical Negligence Reforms: Is it Time to Change the Record?

Nick Delaney, director of business development at First4Lawyers

It seems safe to assume that the introduction of fixed recoverable costs for lower-value clinical negligence claims will not, as the government promised, be happening in April after all.

Plans to cap costs on most claims up to £25k were announced by the Department of Health and Social Care in September, with a self-imposed deadline of this month.

But there has been radio silence on the reforms – and how they might actually work – ever since.

Ministers failing to stick to their own timetable is nothing new. The extension of fixed costs to cases up to £100k was delayed not once but twice before it was finally implemented in October – 12 months later than planned.

What is disappointing is that those rewriting the rules have so far failed to even acknowledge the delay or give anything more concrete than a wishy-washy pledge that the new rules will come into force “in due course.”

What does it mean for the market?

Business as usual is what this means for the market at present. There is such a lack of information and clarity around the protocol that law firms cannot prepare.

A few have tried, by changing their retainers or taking on extra work before costs shrink, but the majority are all too used to the uncertainty and are fairly sanguine about the situation.

Will the predicted change in government halt the reforms? I don’t believe so, although what’s in the small print may change. Will it change the make-up of the market? More likely.

Some of the more traditional firms have already indicated they will stop taking on lower value work but, as we have seen in the motor market, volume players will plug the gap.

The market is smaller than it was – just shy of 15,000 clinical negligence claims were recorded last year, a modest increase on 2022 but down on the 17,500-18,500 of pre-pandemic years, according to data from the Compensation Recovery Unit. With the continuing pressures on the NHS, however, I think we are likely to see numbers rise.

What do law firms need to know now?

If the government is still intent on reform, I would like to see the protocol published a full 12 months ahead of implementation. This would give law firms adequate time to prepare and find a way to continue supporting the vulnerable victims of clinical negligence who should be at the heart of any decision-making.

This should include a definitive list of fees and what is and isn’t included. For example, it is still not known on which side the cost of expert witnesses will fall.

Lawyers need details of likely time frames and what safeguards will be in place to ensure that defendants make efforts to keep to timetables too. Crucially, they also need to know if there will be any impact on ATE insurance.

Looking ahead

If I was a gambling man, I’d bet on the reforms being implemented in April 2025. But what I would like to see is the government focus on solving the real issues, such as chronic underfunding and understaffing of the NHS, that contribute to negligence in the first place.

Clinical negligence lawyers are specialists who do an enormous amount of due diligence at the outset to take forward only cases where genuine negligence has occurred. The cost of seeding out spurious cases is borne by the claimant side and that is another point I feel has been lost.

As the saying goes, if it ain’t broke, don’t fix it. The current system of legal redress works, it is the NHS that needs help.