Clinical negligence costs remain one of the most debated areas of civil litigation. While wider reforms to civil costs have taken effect, proposals for fixed costs in lower-value clinical negligence claims are still under consultation. As of 2025, fixed recoverable costs (FRC) apply to a wide range of civil claims, but costs for clinical negligence claims are currently treated differently, reflecting their complexity and sensitivity.

This current framework is defined by the Civil Procedure Rules and supplemented by Key Practice Directions that govern how costs are managed in clinical negligence claims.

Proportionate Cost and the Drive for Reform

The policy aim behind reform is to ensure that litigation proceeds at a proportionate cost to the sums in issue. The Department of Health has long argued that clinical negligence litigation is disproportionately expensive when compared to damages awarded.

However, practitioners know that these cases often involve disputed causation, multiple experts, and vulnerable claimants. Any attempt at introducing fixed costs, therefore, risks restricting access to justice, especially if costs allowed under the rules do not reflect the genuine demands of litigation.

What Currently Applies

At present, the FRC introduced in April 2024 only applies to certain civil claims (e.g. personal injury, housing, and parts of the fast track and intermediate track). They do not extend automatically to clinical negligence, although consultation continues on whether a lower-value scheme may follow. As of 2025, there is no binding FRC scheme for clinical negligence claims below the £25,000 threshold, though government consultations continue to explore this.

This means that legal costs in clinical negligence matters remain subject to detailed assessment or negotiation, rather than fixed tariffs. The rules on costs for vulnerable claimants remain especially important here.

Costs Involving Protected Parties or Children

Where clinical negligence litigation involves children or protected parties, CPR Part 46 and Practice Direction 46 impose additional safeguards. Rule 46.4 requires the court to control how costs are assessed in such cases.

As PD 46 states:

“Where a claim involves a child or protected party, the court must order a detailed assessment of costs unless satisfied it is unnecessary to protect the claimant’s interests.”

This provision ensures that costs in claims involving protected parties, or those involving protected parties or children, cannot be finalised without judicial oversight. It reflects the courts’ wider duty to safeguard vulnerable claimants and ensures that recoverable costs remain both fair and transparent.

Recoverable Items

Even under fixed regimes, certain disbursements remain recoverable, and the same applies in clinical negligence. Key categories include:

• Court fees: payable in addition to other sums.
• Expert reports: essential in proving breach of duty and causation.
• Counsel fees: where advocacy or advice is necessary.
• Pre-action costs: recoverable within limits, but often scrutinised.

PD 45 illustrates how the Civil Procedure Rules structure fixed costs in other areas of litigation, using staged grids and complexity bands. While this model does not currently extend to clinical negligence, it provides a clear indication of how a similar approach might be adapted if a lower-value scheme is introduced in future.

Damages and Policy Considerations

The push for reform stems from concern about escalating damages, clinical negligence payouts, and the associated cost of litigation. For the NHS and defendants, the aim is predictability. For claimants, the issue is whether recoverability will remain sufficient to fund proper legal representation.

As PD 46 also notes in relation to trustees and estates:

“A trustee or personal representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred … including whether the trustee obtained directions from the court, acted in the interests of the fund or estate … and acted reasonably in bringing or defending proceedings.”

The emphasis throughout remains on whether costs are “properly incurred” — a theme that runs through clinical negligence disputes too.

Strategic Considerations

For practitioners and cost draftsmen, the current framework requires:

1. Careful screening to establish whether fixed regimes apply at all.
2. Close reference to CPR Part 46 and PD 46 where vulnerable claimants are involved.
3. Rigorous recording of disbursements such as expert reports, counsel fees, and pre-action work.
4. Readiness to argue proportionality and necessity at assessment.

How Greener Costs Can Help

At Greener Costs, we specialise in navigating the complexity of clinical negligence costs. As reforms evolve, the role of experienced costs professionals becomes even more critical. Our team ensures that recoverable items are presented properly, exemptions are recognised, and disputes are approached strategically to secure the best possible outcome. Our team can:

• Advise on exemptions and court approval where cases involve children or protected parties.
• Prepare accurate bills and budgets, ensuring all recoverable heads of cost — including court fees, expert evidence, and counsel’s input — are presented correctly.
• Challenge or defend costs in line with CPR and Practice Directions.

We combine technical knowledge with practical drafting and negotiation to protect your client’s position.

Contact Greener Costs today to discuss how we can support your clinical negligence practice.