Fixed recoverable costs in lower damages clinical negligence claims – a supplementary consultation on disbursements
Applies to England and Wales
Read the full outcome
Detail of outcome
This response sets out the approach to disbursements, in a claim for costs, in the Lower Damages Clinical Negligence Fixed Recoverable Cost (LDFRC) Scheme.
For all LDFRC scheme claims, the following items will be separately recoverable:
- expert report fees (including expert costs associated with the report) and ‘after the event’ insurance (ATE) premiums covering the cost of expert reports
- court fees relating to an application for pre-action disclosure
- inquest costs and disbursements to the extent that they would be in clinical negligence claims not subject to this FRC scheme
- in the limited circumstances where limitation is due to expire imminently, the court fee for issuing proceedings, and any court fees incurred applying for or extending a stay of proceedings, where proceedings are started as a result of a limitation period that is about to expire
For LDFRC scheme claims involving protected parties or children, the following items will be separately recoverable:
- counsel fees in relation to Part 8 approval hearings
- court fees in relation to Part 8 approval hearings
For LDFRC scheme claims that do not involve protected parties or children, the following items will not be separately recoverable:
- counsel fees incurred in the pre-action phase
- court fees except as set out above, which is both:
- court fees relating to an application for pre-action disclosure
- in the specific circumstance relating to the court fee for issuing proceedings, and any court fees incurred applying for, or extending, a stay of proceedings, where proceedings are started as a result of a limitation period that is about to expire
Changes to the original proposals, informed by the consultation, include:
- recovery of court fees for a Part 8 application for pre-action disclosure
- recovery of disbursements in relation to applications for a stay in proceedings in addition to disbursements relating to court fees to issue proceedings, where there are risks associated with limitation
This response also clarifies wording around disbursements for expert fees and makes clear that rules relating to costs and disbursements in the LDFRC scheme will not apply to inquest costs and disbursements.
Detail of feedback received
The outcome of responses to this consultation can be seen in the government response on this page.
Original consultation
Consultation description
This consultation originally ran from 15 September to 27 October 2023.
It has been re-opened as one question was missing from the online survey. This was not an issue with responses submitted by email, and all the questions were included in the consultation document itself.
The question asked if respondents had any alternative proposal to the proposals on disbursements outlined in the consultation document.
If you want to respond to this question or to the full survey, see the ‘Ways to respond’ section below.
If you indicate in the online survey that you’re completing the survey for the second time, you’ll be prompted to answer the missing question only.
In 2022, we ran a public consultation on proposals to introduce a new scheme to enable claimants and defendants to achieve faster resolution of ‘lower value’ clinical negligence claims (claims valued up to and including £25,000) at a lower, more proportionate cost than under the current system.
In response to feedback, we are now publishing a short supplementary consultation addressing the issue of disbursements under the proposals.
This supplementary consultation seeks views on whether the cost of disbursements should be included within the specified recoverable costs in the Lower Damages Clinical Negligence Claim Fixed Recoverable Costs (LDFRC) scheme or should be additionally and separately recoverable, and which disbursements should be included.
Find out more
To find out more, visit the 2022 consultation page, where you’ll find the:
- original consultation document
- government response
- equality duty analysis and impact assessment
Documents
Updates to this page
Last updated 8 May 2024 + show all updates
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Added the government response to the findings of this consultation.
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Re-opened the consultation as a question was missing from the survey. See the call-out box for details.
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First published.