The Background

This had parallels with the introduction of such schemes for non-comparable areas of the law such as Whiplash. A pre-consultation was issued in August 2015 with an intended implementation date of October 2016. Since then, there have been significant delays and changes at the Department of Health, the consultation eventual-ly being closing on 2nd May 2017 and the consideration of proposed reforms passed to the Ministry of Justice.

SCIL have consistently argued that the such proposals are fundamentally flawed, misunderstand the nature of the Clinical Injury Compensation Scheme, is not necessary from a cost saving point of view and would have the opposite effect to what is intended.

Amidst considerable Ministerial change, dissenting views from the legal sector, and on the advice of Lord Justice Jackson, the Government in 2018 via the Ministry of Justice, confirmed its intention to launch a further future consultation on Fixed Recoverable Costs in Clinical Negligence proposals following recommendations from the a working party of the Civil Justice Council, which is due to report imminently, SCIL have participated in this process, willingly and with a commitment to engage constructively on behalf of the member firms they represent.

Flawed Process

Furthermore, removing the potential learning from such cases which could improve patient safety within the NHS, and is being determined by a flawed and ineffective process of the Civil Justice Council which is seemingly a pre-determined ‘tick-box’ exercise loaded against the interest of claimant lawyers and which will significantly impede access to justice for victims, patients and their families, the constituents you represent across the country.

Civil Justice Council Working Group

The Terms of Reference were as follows:

  • To consider and recommend an improved process for clinical negligence claims, where the claim has a value of £25,000 or less;
  • To draw up (i) a structure for FRC for such cases to attach to the new process, (ii) figures for FRC in the proposed structure, and (iii) figures for the cost of expert reports;
  • To have regard to how any improved process or scheme of FRC might affect issues of patient safety, including the way in which case outcomes are reported back to health care providers for learning purposes;To consider how expert reports should be commissioned and funded, including the feasibility of single joint experts for at least some claims, as part of the improved process;

SCIL has participated, along with other claimant lawyers, in the CJC led working group with great frustration, not least having submitted their own SCIL Scheme at the outset. This has been typified by little or no paperwork, seemingly unrepresentative or logically calculated membership, a lack of industry knowledge from the Chairman, briefings rather than discussions and a determination to follow a controversial pre and ill-conceived Law Society consideration of such issues.


‘Creep’ Inevitable

SCIL has in parallel and at the urging of a former Secretary of State for Health, engaged with NHS Resolution (formerly the NHS Litigation Authority) as to how both sides Claimants and Defendants can work together to improve both process and NHS Learning from Clinical negligence cases. This again has been a slow and difficult process but indicates a willingness to agree to constructive reform.

Access to justice

  • SCIL members currently filter 100,000 cases per year on a pro-bono basis. These cases are filtered by professional, experienced lawyers to ascertain if there is a case. Only circa 3% are deemed to be actionable.
  • The introduction of FRC will render this service uneconomic and it will come to an end.
  • This will lead to a substantial increase in litigation in person cases and the number of claims management companies entering the sector on a no win no fee basis.
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