The pros and cons of a Low Damages FRC (LD FRC) process in clinical negligence

Lucy O’Dwyer

Medico-Legal Services Director

AvMA

Many clinical negligence specialist solicitors will admit that if you were to set about designing a claimant-friendly court process, it is unlikely that anyone would recommend the current one.

The potential for a better, more efficient, and more economical way of working does exist but to make effective change it is our view that you need to look at the current system to identify the triggers that give rise to increased costs. The longer a case runs the higher the costs; this correlation appears to be accepted, but there are almost certainly other factors. It is a pity that this has not been explored further.

The purpose of a Low Damages FRC process

The Low Damages Fixed Recoverable Cost (LDFRC) process has been designed to facilitate swifter resolution of claims, seeking to shorten the time between notification and resolution, and this is to be applauded. Whether that process can deliver remains to be seen.

Central to whether a FRC process will work or not is the question of whether the levels of fixed costs currently proposed are commercially adequate. That can only be answered by specialist claimant lawyers. AvMA does not conduct litigation, and therefore we are not able to offer any views on whether the levels of FRC offered are economically viable or not.

It stands to reason that the government needs to listen and respond to the specialist clinical negligence claimant lawyer voice on this crucial issue. A failure to do so will result in lawyers experienced in this complex area of law ceasing to do this important work. While that void may be filled by non-specialist lawyers “having a go”, this will likely lead to adverse consequences for the injured claimant.

We do not have to look too far to witness the additional distress that can be caused to injured patients when non-specialists become involved. In recent months, AvMA has been supporting more than forty women who have life-changing injuries from vaginal mesh cases; they already felt let down by the medical profession. When Fortitude Law, who were representing them, went into administration, many of them were left also feeling let down by the legal profession.

Fortitude Law was run by a sole practitioner who was not accredited by any specialist clinical negligence body. It appears that limitation has been missed on numerous occasions; cases have not been progressed, claims may have been under-settled and generally these injured women have not been kept up to date with the merits of their case. This should not be allowed to happen, but by allowing non-specialists to enter the clinical negligence market, we risk seeing more of these types of problems.

Sir Rupert Jackson’s proposals for reform

It is staggering how blatantly government picks and chooses what they want from the Sir Rupert recommendations. The reforms certainly have a focus on achieving greater certainty around costs; however, his vision was about more than saving costs. It was about preserving the integrity of our world-renowned legal system.

In Sir Rupert’s Review of Civil Litigation Costs: Supplemental Report FRC, published in July 2017, we are reminded of his five strategic objectives (para 2.2).

The objectives are described as:

1. Amending rules of procedure, so as to streamline the litigation process and cut out unnecessary work;
2. Amending funding rules, so that:
   1. no method of funding generates increased costs; and
   2. there are as many different funding options as possible.
3. Facilitating and incentivising early settlement of disputes;
4. Limiting recoverable costs to proportionate levels and streamlining the process of assessment;
5. Controlling the amount of recoverable costs in advance.

Few people, including lawyers, would disagree with the principle of cutting out unnecessary work. In our experience, patients/claimants find litigation stressful, difficult and time-consuming. If the process can be shortened by cutting out unnecessary work, that is a good thing. Likewise, facilitating and incentivising early settlement of disputes is good for patients/claimants and no doubt good for the healthcare professionals involved – achieving this is win/win.

As part of strategic objective (ii) Sir Rupert reminded us that in his original report Review of Civil Litigation Costs (published December 2009) he had recommended in “forthright terms that there should be no cutbacks in legal aid” (see para 3.1 of the supplementary report). The government has since cut back legal aid significantly.

In his paper for the Civil Justice Council Conference on 21^st March 2014 (para 3.1-3.3) he makes it clear that “One cannot bring down the cost of litigation simply by rewriting the costs/funding rules”. He went on to point out that “measures should be taken to promote the assignment of cases to designated judges with relevant expertise”, a process referred to as docketing. The importance of “judicial continuity” was one of the “few matters upon which the various warring parties agreed during the Review. Finally, the experience of both Australia and the US confirms the benefit of judicial continuity.”

Disappointing then, that we are no closer to docketing than we were in 2009. The importance and relevance of docketing and the contribution this could make to bringing down the costs of litigation appear to have been ignored.

What will FRC really do?

FRC per se does not make litigation cheaper, it shunts the cost of litigation onto the injured claimant, reducing their damages by making them contribute the shortfall in their legal costs out of the compensation awarded for their injury. This is plainly an injustice. The LD FRC process and protocol offers no protection for the claimant and their damages, and this is a significant failing.

Neither does it offer any opportunities to identify patient safety and learning from the process. Under a FRC regime it is entirely possible that the shortfall created by FRC could severely reduce client damages, wipe them out altogether or, in the worst case, leave the injured claimant owing money to their lawyer despite successfully proving their case.

The LD FRC process itself may provide some redemption. A two-track approach could improve the claimant experience. If the Light Track does what it is intended, to which is encourage early admissions, this must be a good thing. If the Standard Track does shorten the time to satisfactory resolution while offering claimants an award of damages appropriate for their injury, then this too will be a good thing. It would be even better if the damages were protected at least to some extent.

As for Neutral Evaluation, the jury is out. With the current backlog in the courts and a shortage of judges, particularly specialist judges, there can be no harm in trying to find alternative ways of resolving claims.

It is our view that for Neutral Evaluation to stand the best chance of success the Evaluators must be impartial, respected within their field, be experienced in clinical negligence work, and have gravitas. It they do not, the process will not have the confidence of the parties or the patient/ claimant and is unlikely to succeed.

The failure to pilot Neutral Evaluation, a process which has rarely been used in clinical negligence litigation is a missed opportunity. AvMA does have concerns about the failure to offer any initial, early monitoring of this process.

Nonetheless, while it remains to be seen, it is just possible that this process will prove to be better than the one we currently have.