Draft rules for the extending of fixed recoverable costs – set to take effect this October – appear to include clin neg claims entering the intermediate track, where breach of duty and causation are admitted. The extension applies to claims worth up to £100,000.

The MoJ has always maintained that clin neg would not be included. Indeed, the Department of Health is still considering its response to a consultation on proposals for FRC applied to claims worth up to £25,000.

Speaking at the Society of Clinical Injury Lawyers conference in Birmingham yesterday, outgoing chair Paul Rumley said the draft rules are ‘either a mistake or a calculated "thin end of the wedge"’. SCIL has asked the MoJ for clarity and for clinical negligence cases to be excluded.

New chair Sharon Allison said lawyers are ‘surprised and alarmed’, especially as the draft rules appear to usurp the talks on FRC for lower-value cases. ‘The proposals would affect the most vulnerable in society, including the elderly, and some cases of still births where negligence has occurred,’ said Allison. She added that SCIL will seek a judicial review if necessary.

Sean Linley, senior costs draftsman at Newcastle firm Carter Burnett, said the draft rules would likely lead to protracted disputes between health trusts and claimant lawyers about the allocating claims. He said: ‘You could have a scenario whereby a claimant argues a case is fast track to get standard costs and a defendant argues it is intermediate track to get FRC. This is why clin neg implementation should be delayed.’

Ian Cohen, a clin neg solicitor who runs his own consultancy, said it was unlikely many cases meeting the criteria for fixed costs would be issued and allocated.

‘I can see no justification for a claimant or a claimant lawyer, to issue in such cases, unless you have explored all alternative [resolution] methods,’ he added. ‘So why try and introduce [clin neg] in to FRC now? I can only assume it may be a way of restating the government’s commitment to bringing in FRC in lower-value cases and not a real attempt to bring [clin neg] into the scope of the intermediate track.’

The MoJ has confirmed that the rules, which will be laid in late May 2023, will state that clinical negligence claims must be allocated to the multi-track, and so excluded from FRC, except where the claim is one which would normally be allocated to the intermediate track and breach of duty and causation have been admitted.

A spokesperson added: 'Our proposals regarding costs in the intermediate track are in line with Lord Justice Jackson’s recommendations.'