Is this a government reform agenda in retreat?
The Government’s affection for fixed recoverable costs has become ever clearer in recent months (e.g. see July 2016 eWire). Ministers seem keen to see fixed costs introduced, and the breadth of their ambition took the breath away from some observers. For example, many were excited by the announcement that in clinical negligence cases fixed fees could be introduced for those with a value up to £250,000. The Law Society Chief Executive, Catherine Dixon (formerly head of the NHS Litigation Authority), said she was ‘astounded’ that the Government would contemplate introducing fixed costs for clinical negligence claims worth up to £250,000. The Law Society, APIL, the Society of Clinical Injury Lawyers and the charity Action against Medical Accidents joined forces as a quartet to develop, and lobby for, a scheme for fixed costs for claims up to £25,000.
For those who don’t routinely trouble to trawl through the minutes of the Civil Procedure Rule Committee, the good news is that the quartet seems to have won the argument. According to the latest published minutes from the Committee:
‘Amanda Stevens, chair of the sub-committee, reported that there had been a change in policy at the Department of Health and that they intended to consult in respect of claims up to £25,000, which comprised approximately 60% of clinical negligence claims. The material worked up by the subcommittee on a draft protocol and illustrative rules would be amended accordingly. The date of publication of the consultation was unknown.’
The Department of Health is leading this piece of government business. It is understood that the consultation will include a question about what the threshold should be. Once the consultation is completed, it is intended that the changes will be implemented as soon as possible. While the date of the consultation on fixed fees in clinical negligence cases remains unknown, it is thought to be imminent.
Meanwhile, another strand of the Government’s civil litigation reform agenda has been firmly kicked into the long grass. In his November 2015 budget statement, George Osborne said that he planned to make it harder for people to claim compensation for exaggerated or fraudulent whiplash claims and that he would like to end the right to cash compensation in such cases. According to the Legal Futures blog, it has now emerged that the consultation on these changes is no longer a priority - not abandoned, we are assured, but not urgent either. That is not going to be greeted with universal approval. While civil claims lawyers will welcome it, as we observed at the time, such changes could bring about some important benefits.