Would the proposed changes leave us in a fix?

There’s a severe lack of funding within the NHS.

We all know this.

The budget for health and care services is incredibly stretched at the moment, leading to staff shortages, ever-growing waiting lists and unfortunately – in some cases – a sub-par level of care. So there’s no denying, something definitely needs to be done to address the issue.

One suggestion that’s been rumbling within the government…

To introduce Fixed Recoverable Costs (FRCs) for clinical negligence cases.

According to the latest reports, compensation payouts for NHS clinical negligence claims totalled an eye-watering £2.8 billion in 2023/2024 (i.e. approximately 1.7% of the entire NHS budget). Plus, claimant legal costs increased by 11% last year – to £545 million.

It’s believed FRCs could help to reduce these costs moving forward, allowing the saved money to be spent elsewhere and reinvested in frontline services. 

Perhaps it would, perhaps it wouldn’t.

But as leading clinical negligence solicitors, our priority is – and will always be – our clients. How would the proposed FRCs affect those claiming for NHS negligence? Would it impact the viability of your case? Make it trickier to get the financial justice you deserve?

Here we take a closer look.

What are fixed recoverable costs (FRC)?

FRCs, essentially, limit how much your solicitor can spend.

At present, if your clinical negligence claim was successful, your full legal bill – however big or small that may be – could be claimed back from the losing party (e.g. the NHS). Meaning you wouldn’t be out of pocket. But if an FRC system was implemented, there would be a pre-determined, maximum amount that you’re entitled to claim.

FRCs are an established practice in most other areas of personal injury claims.

So why not clinical negligence cases too?

According to the government, the legal costs recovered for successful claims are currently – on average – over double the amount of compensation awarded, particularly for low-value claims. For example, whilst the claimant may receive £1000 in compensation, their final legal bill may total £30,000 or more. And such cases make up around 60% of all NHS claims.

By introducing FRCs, they believe legal costs would become more proportionate to the value of damages awarded – which, in turn, would help to ease the financial strain on the NHS.

What would the changes mean for you as a claimant?

If FRCs were implemented, these would apply to all clinical negligence cases which settle at the pre-litigation stage – with compensation valued between £1,501 and £25,000.

Some cases may be excluded from the scheme – for example, those where there are multiple defendants, those where there are more than three liability experts or those which involve a neonatal death or stillbirth. All other cases, however, will be pursued under one of two claims tracks: standard or light.

Generally speaking, the standard track will be used for most claims where there is likely to be a dispute on liability. The light track, on the other hand, will provide a slightly quicker option – enabling a swifter resolution for straightforward cases, especially where liability is not in dispute.

For standard track claims, legal costs will be capped at £7000 plus 30% of damages.

For light track claims, legal costs will be capped at £3250 plus 20.5% of damages.

Is it a cause for concern?

There’s no denying, the proposed FRCs do pose some challenges for clinical negligence cases.

From the perspective of a solicitor, it would certainly make it difficult to find the right balance between justice and profitability – two key elements of working in the legal industry. So much so, it may drive some specialist law firms out of clinical negligence altogether.

For the claimant, the issue of ‘justice’ is certainly a cause for concern. For example:

• Some serious cases may be impossible to take forward.
• It may encourage health providers to deny liability unreasonably.
• It could even create an unfair playing field – limiting the costs that you could potentially recover as a claimant, whilst the defendant is free to spend as much as they like.

But it’s important to keep in mind, these changes are still just hypothetical.

Initially, the system was scheduled to start from April 2024. This was then delayed due to ‘outstanding issues’ until October 2024. But at that point, still, nothing happened. The issue wasn’t even discussed by the Civil Procedure Rule Committee at their latest meeting.

Fast forward to the new year, and there are rumours that it could now be implemented in April 2025. But this is mere conjecture and nothing official has been said to that effect.

Clinical negligence claims at St Helens Law

Think you may have fallen victim to clinical negligence?

Please don’t hesitate to contact us, here at St Helens Law.

At present, absolutely nothing has changed about clinical negligence claims.

Our specialist solicitors can guide you through the entire process, from advising on your eligibility and completing the initial paperwork to gathering evidence and negotiating a settlement – typically, on a ‘no win no fee’ basis.  Which means, if you win, legal costs will be covered by the defendant. If you lose, our fees will be covered by an insurance policy.

In the event that FRCs are implemented later this year, inevitably, we will be bound to adopt them. But thanks to the skill and expertise of our team, in most cases, we should still be able to achieve financial justice on your behalf – whilst staying within the new restrictive budget.

To take the first step, why not book your free initial consultation by filling out the form on this page? Alternatively, if you have any questions, contact our clinical negligence department by calling 01744 742360 or simply send an email to info@sthelenslaw.co.uk.

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FRCs have been proposed for clinical negligence claims. Find out what that could mean for you, and contact our clinical negligence solicitors at St Helens Law.