Fixed recoverable costs and clinical negligence claims – Why is there a “20% rule” in respect of vulnerability already in the CPR, if FRC don’t currently apply to Clinical Negligence Claims?

When Charlene Turner and Helen Spalding attended #SCILed2024, they took our new “costs questions” box along with them and there were three which we were asked which really stood out to us as being something we thought some of our readers may also be interested in. Charlene deals with the first one of them looks at the potential interplay between fixed recoverable costs and clinical negligence claims.


“If the wording, or even the implementation, of the new low value Fixed Recoverable Costs on Clinical Negligence claims (under £25k) is still up in the air, why is there a “20% rule” in respect of vulnerability already in the CPR, if Fixed Recoverable Costs don’t currently apply to Clinical Negligence Claims?”



The “20% Rule” that is referred to is CPR 45.10 which says:

45.10. (1) The court may consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in Section VI, Section VII or Section VIII of this Part where—

(a)a party or witness for the party is vulnerable;

(b)that vulnerability has required additional work to be undertaken; and

(c)by reason of that additional work alone, the claim is for an amount that is at least 20% greater than the amount of fixed recoverable costs.

This Rule is currently in play for all Claim types that attract Fixed Recoverable Costs – being all claims which fall under the scope of CPR 45.

You may be thinking, “ah, that’s for everything else, there are still no FRC in Clinical Negligence claims”.  If you believe that, please do speak to one of our team or have a closer look at the Fixed Recoverable Costs reforms that came in on the 1st October 2023.

Though the impact of the October 2023 aren’t likely to be felt for a good length time (on Clinical Negligence Matters) please be aware that where:

  • The cause action is after 1.10.23
  • Liability has been admitted in the Letter of Response (CPR 26.9 (10)(b)(ii) & (iii))
  • The claim is one which would normally be allocated to the Intermediate Track (CPR 26.9(10)(i))

FRC will apply.

Though such claims may seem likely to be few and far between, it is worth bearing in mind that if you run a Clinical Negligence claim that is of any value up to £100,000.00 that falls within the above scope, it is imperative that you consider vulnerability at as early a stage as possible – as much to assist the vulnerable person as to help yourself. That one rare case may be one that you can’t afford to lose out on.

There is so much more to discuss on this topic than can realistically be contained in a written blog post (without being in danger of writing a short essay which would likely expand on the injustices of FRC and the infringement to Access to Justice). If this topic interests you or you have any questions about this blog, or even if you have another costs query altogether, then we invite you to contact our Charlene Turner or one of our knowledgeable Team Paramount Litigation Team here to chat some about this.


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