Lawyers across England and Wales have been eagerly awaiting Lord Justice Jackson’s review of fixed recoverable costs. These recommendations have been unveiled today and are generally being well received by claimant clinical negligence lawyers.

In his report, Lord Jackson sets out proposals for extending the present civil fixed cost regime and considers the types and areas of litigation in which such costs should be extended and the value of claims to which such a regime should apply. His report proposes the following;

  • A grid of fixed recoverable costs for all fast-track cases.
  • A new ‘intermediate track’ for certain claims up to £100,000 which can be tried in three days or less with not more than two experts on each side.
  • Piloting a ‘capped costs’ regime for business and property cases up to £250,000.
  • New measures to limit recoverable costs in judicial review cases.
  • A working party be set up by the Department of Health and the Civil Justice Council including both claimant and defendant representatives to develop a bespoke process for handling clinical negligence claims valued at up to £25,000.00.

In relation to clinical negligence claims, Lord Jackson seems to appreciate the complexity of the cases we run and accepts the difficulty of a ‘one size fits all’ approach. He states that ‘You can’t just slap a fixed recoverable costs regime onto existing procedures.

The report is a welcome departure from Lord Jackson’s previous suggestion that fixed costs could be applied to all claims up to a value of £250,000.00, which certainly would have had a profound impact on patients’ access to specialist advice and assistance at a time when they need it the most.

The set-up of a working party to assess cases valued at less than £25,000.00 is a logical way forward. We maintain however that a fixed cost regime for these cases is not the answer and would undoubtedly disadvantage clinical negligence claimants.

This has clearly been a detailed review and it is positive to see that Lord Jackson has taken on board many of the comments received from claimant representatives during consultations in the run up to the report’s publication.

The report highlights several points raised by claimant’s representatives regarding clinical negligence costs, including the defendant’s part in increasing these costs unnecessarily. Whilst Lord Jackson advised that it was not appropriate for him to reach any conclusion on these issues within his report, he accepted that there was some evidence in this regard which merited investigation by the National Audit Office. We are currently awaiting the outcome of these investigations which should certainly form part of any future working party consultations.