Further reform of costs in med-mal?

The Ministry of Justice is considering further costs reform of medical negligence claims, particularly in relation to After The Event (ATE) insurance premiums purchased for obtaining expert reports.

The Department of Health are considering a new fixed costs regime for med-mal, which is expected to lead to a public consultation later this year. In addition to this, the Ministry of Justice has now signalled an additional review and potential reform of the ATE premiums recoverable for expert reports in med-mal. 

As part of the Jackson costs reforms, it will be recalled that the recoverability of ATE premiums was abolished, but a limited carve-out remained in medical negligence claims. This continued to allow claimants to recover the cost of ATE premiums for expert reports from the paying party. The rationale behind this was that in medical negligence claims expert evidence is often vital to establish a case and can be otherwise expensive for individuals to bear.

The Ministry of Justice has now invited stakeholders including ATE insurers to a series of meetings this month to discuss potential reform. It remains to be seen whether any changes, either standalone or in conjunction with a fixed costs regime will be introduced. If the Ministry of Justice does intend to abolish the recoverability of ATE premiums in med-mal, it will need to weigh up any perceived issues regarding access to justice, the availability (and cost) of ATE premiums in the market, and the obvious benefit to Defendants, med-mal insurers and paying parties of an overall reduction in litigation costs.

This article first appeared in DAC Beachcroft’s Health adviser alert and has been reproduced with their permission. For more information about DAC Beachcroft visit www.dacbeachcroft.com.