Fixed Recoverable Costs in lower value Clinical Negligence claims

The Department of Health’s consultation on FRCs in lower value Clinical negligence claims ended on 2nd May 2017.

If implemented in the form which the Government seems to wish, bearing in mind what the consultation document indicates as “preferred” options, the changes are likely to have an effect on the ability of some people who have suffered dental negligence to obtain the assistance of a solicitor to take on their case. This is because the costs recoverable by a solicitor, even when working under a “no win, no fee” type of agreement where some of the claimant’s damages are also payable to the solicitor, may make dental claims uneconomic unless they are for damages greater than £25,000. Many dental negligence claims fall below this value, but are nevertheless legitimate and deserving.

One of the particularly draconian proposals is the capping of recoverable expert fees.  The reason why this “cap” is unreasonable is that it appears that an expert would be expected to sign up to work on a case for a fixed fee when the amount of work which they will have to do is unknown.  Work does not stop at preparation of an initial report or reports which themselves can take many hours and often include a clinical examination in a dental surgery, with the costs and overheads this implies. Further work may than require responses, often on multiple occasions and in some considerable detail, to questions posed by both parties to a dispute, a conference with a barrister, one or more joint experts’ meetings and preparation of a joint report, and attendance at a contested court hearing to give evidence and usually to assist the barrister during cross-examination of the expert or experts instructed by the opponent.

The alternative is that the solicitor instructing the expert would be expected to fund the “excess” expert’s fees over and above the “cap” out of the overall recoverable costs.

Given the daily cost of running a dental surgery, it is not difficult to see that it may well be uneconomic for a dental expert to take on this type of work. Yet without expert evidence, which will have to be disclosed to the dentist at a relatively early stage, a claim will not be able to be made in the first place.

It cannot be conducive to prevention or redress of health inequalities to put such obstacles in the way of someone whose health has been damaged by a negligent act.  They should be able to put themselves in a reasonable position to remedy the situation.

Dental claims, even relatively low-value claims, can and frequently are  complicated by their nature – see  more by clicking here.

We now have to wait to see the outcome of the consultation.

As a barrister specialising in dental matters with my background as a dentist, I can assist with assessment of a potential dental negligence claim, and advise members of the public under the direct access scheme in relation to what professional assistance they may require.

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at clerks@goldsmithchambers.com .  Telephone 0207 353 6802.