The intention is that the lower damages clinical negligence claim FRC (LDFRC) scheme will come into force through secondary legislation and after approval by the Civil Procedure Rule Committee. A further consultation will be launched on how disbursements will work under the proposed scheme.

Making the announcement, the Department of Health & Social Care said the annual expenditure on clinical negligence claims continues to rise and that legal costs represent a ‘sizeable proportion’ of this.

‘Our policy intent in proposing implementation of this scheme is to facilitate faster resolution of claims at a cost that is proportionate to the value of the claim,’ the department said. ‘We are also committed to ensuring that access to justice for claimants is protected and any risks to access to justice mitigated.’

The new streamlined protocol aims to facilitate early resolution and save costs. Claimants will be expected to have obtained early expert evidence on their condition and prognosis, and to include this in the bundle of evidence with the initial letter of claim.

Exclusions to fixed costs will include neonatal deaths and stillbirths (although not fatal claims in general), cases requiring more than two medical experts, claims involving a protected party or children and cases involving litigants in person.

New rules will enable the court to impose sanctions where the protocol is not followed.

If the claim is overvalued at the outset and subsequently settles for less than £25,000, it will be subject to fixed costs, whether or not the pre-action protocol has been followed.

The government announcement adds: ‘While we understand the concerns about predicting the ultimate settlement value of a claim, we believe that the expectations for claimants and defendants are clear. In particular claimants will need, early on, to obtain relevant information and evidence, assess the risks around valuation of a particular claim, and value the claim accordingly.’

Following the end of the fixed costs protocol, if the claim is not settled, the claimant may proceed to litigation and if the claim is not settled before the allocation stage, the court will allocate the claim to a case management track.

The government said its overarching policy intent ‘is to allow a proportion of claims to be resolved even more quickly, even if this is only a minority of claims within the LDFRC scheme’.

The costs for stage one standard track claims are limited to £5,500 plus 20% of damages agreed. This includes all steps up to and including the ‘stocktake’ of the case which can last up to 38 weeks. A further £500 can be claimed for stage two, an eight-week period including neutral evaluation.

The decision to press on with fixed costs comes despite overwhelming opposition from the claimant firms and representative groups that responded to a consultation last year. Concerns were expressed that clinical negligence claims of any value were too complex and therefore unsuitable in principle for fixed costs.

The new regime will work in tandem with the fixed recoverable costs scheme for most civil claims up to £100,000 – coming into force next month – which includes alimited number of clinical negligence claims where liability is admitted.