Fixed recoverable costs should be extended to all claims, says MDU

The MDU has submitted evidence to Lord Justice Jackson's review of fixed recoverable costs, proposing the introduction of fixed costs for all 'lower-value' clinical negligence claims with awards up to £250,000.

The MDU has long advocated for more proportionate legal fees. The Department of Health recently announced a proposal to impose fixed costs on all medical negligence cases up to £25,000. Although we have welcomed this announcement, we nevertheless believe that raising the upper limit to claims of £250,000 would have a far greater and more immediate impact.

The MDU's evidence to Lord Justice Jackson's review is based on our experience of claims brought under a conditional fee agreement after the 1 April 2013 legal changes, which were intended to reduce the disproportion between claimants' awards and their costs. We were encouraged that costs in lower-value claims have reduced, though this was achieved only by spending considerable time and money in negotiating bills. However, there is still a disproportion and in the lower-value costs bands claimants' costs are 150% of damages awarded, which is far too high.

Clinical negligence claims are generally more complex than other personal injury cases. Whether high value or low value, they require expert input from multiple parties, and there can be a lot at stake - not least the personal and professional reputation of our members.

The MDU believes it is possible to recognise this complexity within a single fixed costs regime that could apply to all personal injury cases. We have suggested a costs structure which we believe recognises the additional work involved in clinical negligence cases and provides incentives to avoid trial. Very few clinical negligence cases do go to trial but if they did, the fixed costs would cover those costs too.

Lord Justice Jackson will submit his report to the Lord Chief Justice and the Master of the Rolls by 31 July 2017 and we will keep members informed about his recommendations.

This page was correct at publication on 28/02/2017. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.