Clinical Negligence Bill proposes extension of Fixed Costs
The Clinical Negligence Bill put forward as a Private Member’s bill by North East MP Catherine McKinnell has undergone its first reading and makes two significant proposals:
a) That fixed recoverable costs for Clinical Negligence claims be extended to cover claims under £25,000 damages.
b) That the Secretary of State reports on the notion of reform of damages in Obstetrics claims.
The bill is scheduled for a second reading on 17 April 2026. If passed it will be a significant step towards the extension of fixed recoverable costs in Clinical Negligence claims. The proposals have been stalled for some time.
MP McKinnell at the first reading stated that:
“NHS Resolution is working to resolve more claims without litigation, and that is welcome but it is far from enough. In 2024-25, claims under £25,000 in value cost the NHS £183 million, yet only £39 million—just £1 in every £5—went to patients in damages. The rest was absorbed by legal and defence costs. It is staggering that so much public money goes to lawyers, not to those patients who have been harmed or to improve care. The previous Government consulted on introducing a fixed recoverable costs scheme, mirroring the approach already used in many personal injury cases, and while it was agreed to three years ago, it remains under review. The Bill will put in place a system that will improve this, and I am grateful to the former Chancellor and Health Secretary, the right hon. Member for Godalming and Ash (Sir Jeremy Hunt), for supporting the Bill.
There is also a long-standing anomaly in how compensation is calculated, dictated by a law predating the NHS that prevents consideration that the NHS may be the best place for claimants to access ongoing care. As it stands, it can lead to the state effectively being double-charged. To ensure that every pound is focused on improving care and preventing harm, we must finally amend and update this law—this 1948 relic—to reflect modern-day reality.
Fundamentally, the Bill is not about numbers on a balance sheet, nor about restricting compensation for those who have experienced harms. It is about the mothers, patients and families who live every day with the consequences of failure, and who are crying out for a system that listens, learns and acts to reduce harm. We have to restore trust and have an NHS built on compassion, not defensiveness, when things go wrong. We must ensure that lessons are learned quickly and openly, so patients get the answers they need and a reassurance that the same mistakes will not happen again. The vast sums of money we currently spend on legal costs must instead go to improving the system, rather than forcing families into years of litigation just to get the answers they deserve.”
There is a sense of frustration at how legal costs have been a central criticism of Clinical Negligence reform.
For example last year's NAO report showed that:
1. The biggest driver in the increase in costs of Clinical Negligence is the number of claims. How about emphasising that, which must be the most concerning statistic?
2. After the number of claims the biggest driver in the increase of costs is damages. In two decades there has been a £2.6bn increase in damages versus a £0.4bn rise in legal costs.
3. Claimant legal costs as a proportion of the total cost of claims has only risen by 1% in two decades. 15% of the costs of claims relates to Claimant legal costs (as a proportion).
4. Yes Defendant legal costs are lower but Claimant work is far more front loaded and as the NAO Report itself acknowledges the NHS has fixed fee arrangements, significantly lower rates and is dealing with more cases in-house. How exactly does the individual from the street get comparable commercial terms?
5. The costs of low value claims do statistically exceed the damages but that does not address what kind of cases these are. Value is not necessarily an indicator of simplicity. Moreover, the NHS can challenge legal costs. If they are too high then go to assessment. If these costs are agreed or assessed then it is accepted that such costs claims are reasonable to the case.
The Clinical Negligence Bill must address concerns as to access to justice and patient safety. Simply restricting legal costs and reforming damages is not a measure of improvement.
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