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Fixed recoverable costs in lower damages clinical negligence claims


On 15 September 2023, the Department of Health and Social Care issued the Government’s response to consultation on FRC in lower value clinical negligence claims.

The response to the consultation sets out the views provided on key policy issues and conclusions of the consultation that ran from 31 January to 22 April 2022.

Government proposals in the response:

  • Introduction of a ‘Pre-Action Protocol for the Resolution of (low value) Clinical Disputes’ referred to as the ‘LVCD protocol’.
  • Introduction of a Lower Damages Clinical Negligence Claim FRC scheme referred to as the ‘LDFRC scheme’. This covers clinical negligence claims with a value at settlement or judgment from £1,501 to £25,000.
  • The LDFRC scheme includes two ‘tracks’ for eligible clinical negligence claims.
  • The LDFRC scheme is intended to operate with the Ministry of Justice’s FRC reforms being implemented on 1 October 2023.
  • The LDFRC scheme relates to the pre-issue part of the process only, and parties are not restricted from proceeding to litigation if the claim is not settled once the pre-issue process is completed.

A small number of litigated clinical negligence claims will be allocated to a case management track, where they may interact with the Ministry of Justice’s FRC reforms due to come into force in October 2023. Where breach and causation have been admitted and subject to the allocation criteria, they will be allocated to the intermediate track.

Where clinical negligence claims are not eligible for allocation to the intermediate track they will be allocated to the multi-track.

The aim of the LVCD protocol is to facilitate resolution, by requiring parties to exchange expert evidence in the pre-action phase and to participate in resolution stages. The LVCD protocol will describe the behaviour the court expects of the parties prior to the start of proceedings.

The proposals for an LDFRC scheme for clinical negligence claims set out in the 2022 consultation proposals and the consultation response document will be submitted to the CPRC during the latter half of 2023.

The intention is that the new rules will come into force on the common commencement date for secondary legislation in April 2024.

The DHSC is also launching a further consultation focusing on the specific issue of disbursements under the proposed LDFRC scheme, inviting views on a proposed way forward on disbursements in the scheme.

The consultation response may be found here.


Between financial years 2006 to 2007 and 2022 to 2023, the annual expenditure on clinical negligence claims to the NHS more than quadrupled from £0.6 billion to £2.6 billion, with legal costs comprising a notable proportion of this rise. The legal costs significantly exceed the amount of damages in the vast majority of lower value claims. As well as acting for the NHS, Keoghs LLP represents clinical providers in the private medical and clinical sector, who report a very similar picture.  

For NHS providers, these costs are funded from the core NHS budget and use resources that could otherwise have been spent on patient care. Private providers have to fund increasing insurance premiums and retentions, and so these costs have a significant effect on the availability of medical care.

We welcome the introduction of the LVCD Protocol as this will provide a framework that should help reduce the cost of investigation, adjusting and settlement of many clinical disputes. The LDFRC scheme will have some unhelpful, likely unintended, consequences for some high street clinical and ophthalmic practices as the Fixed Costs in some cases will be higher than the variable costs sometimes incurred in some low value and straightforward claims. Undoubtedly, the LDFRC scheme will ameliorate the current high cost of NHS claims whilst providing access to justice at proportionate cost.

Howard Dean

Howard Dean
Head of Costs

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