Clinical negligence: Outstanding issues
Fixed recoverable costs for low-value clinical negligence claims are now likely to come into force in October 2024, it has emerged.
The Department of Health and Social Care announced last September [1] that their introduction was planned for April 2024 and has yet to confirm otherwise, despite repeated requests for comment from Legal Futures as no rules to implement them have been forthcoming.
However, yesterday, the minutes of March’s Civil Procedure Rule Committee (CPRC) meeting were published and said the sub-committee responsible for the rules still had outstanding issues to resolve “before being in a position to present draft rules and a proposed pre-action protocol for committee consideration”.
The minutes said the intention was to finalise the amendments in time for inclusion in the summer CPR update cycle, for implementation in October 2024. The sector may get to see them earlier still, they indicated.
The Department of Health and Social Care has yet to respond to a request for comment on this too.
This delay has long been on the cards after it emerged that the CPRC had in fact warned the government in July [2] 2023 about the difficulty of meeting the timetable, and the minutes of its October meeting showed that the position had not changed.
Qamar Anwar, managing director of First4Lawyers, said: “Delays are seldom a good thing but, in this case, it is the only sensible solution when there are still so many unanswered questions about these reforms and how they will work.
“The new streamlined protocol that was promised has yet to materialise, if it has indeed been written yet, and law firms must be given adequate time to review and prepare, or vulnerable claimants will pay the price.”
In a separate development, the CPRC has launched a consultation [3] on rule changes to codify the Court of Appeal’s ruling [4] last year in Churchill v Merthyr Tydfil BC, which said judges could order parties to engage in alternative dispute resolution (ADR) so long as it does not restrict their ability to proceed to a judicial hearing
The proposals are:
- Adding to the overriding principle at rule 1.1 that dealing with a case justly and at proportionate cost includes, so far as practicable, using and promoting ADR methods. This “would underline that considering the use of ADR should be a key part of the court process”, the committee said;
- Changes to rules 1.4 and 3.1 to clarify that judges may order as well as encourage parties to participate in ADR procedure;
- Changes to parts 28 and 29 to add that courts must consider whether to order or encourage parties to participate in ADR for fast-track, intermediate track and multi-track claims; and
- Changes to part 44 to add that failure to comply with an order for ADR or unreasonable failure to participate in ADR proposed by another party would come under the consideration of the conduct of parties when deciding to make any order about costs.