By Louise Cantrill, Partner and Alesha Burke, Special Counsel
The re-issued Practice Note SC CL 7 commenced on 1 June 2020 (PNL Practice Note) and applies to medical or legal professional negligence claims and other matters the court considers suitable to be entered into the Professional Negligence List. The PNL Practice Note replaces the previous SC CL 7 which commenced on 31 March 2008, and should be read in conjunction with the re-issued Common Law Practice Note SC CL 1 which commenced on 25 May 2020, although we expect the former will prevail where there is a specific discrepancy.
The PNL Practice Note introduces significant changes in relation to the manner in which medical negligence proceedings in particular are managed. Significant changes include:
- The Professional Negligence List will now be managed by a List Judge on the first Friday of every month.
- There are a number of matters which will be expected to be attended to prior to the First Directions Hearing, which will generally take place approximately 3 months after the proceedings being entered into the list. These include:
- A draft timetable for the future management of the proceedings (noting hearing will be expected to be allocated within 12 months of listing) (PNL 17).
- A schedule of issues is to be produced identifying expert evidence that may be adduced and whether that evidence is suitable to be dealt with by way of a single expert witness (PNL 34(d)).
- Practitioners will be expected to limit the number of experts in relation to liability aspects of medical negligence claims, except in complex cases (PNL 33). Where an expert is considered unnecessary, the Court may reject the expert’s evidence and disallow costs associated with qualifying and calling the expert (PNL 32).
- In relation to quantification of damages, a number of changes have been made, including the following:
- A single expert direction will be taken to have been made at the First Directions Hearing, unless otherwise ordered (PNL 34(h)). Strict timeframes have also been put in place for the parties to agree to a single expert and obtain a single expert report.
- The number of expert witness in relation to the quantification of damages is now limited to:
- One medical expert in any speciality, except in limited circumstances;
- Two experts of any other kind (PNL 34(a)).
- Actuarial reports will generally be considered unnecessary except in special circumstances, such as proceedings under the Compensation to Relatives Act or in circumstances where a claim is made for the cost of future fund management (PNL 34(b)).
- Indemnity costs may be awarded in respect of work necessitated by an unreasonable failure to provide access to or copies of medical or hospital records before or after the commencement of proceedings (PNL 18).
- Practitioners can expect to be required to serve lay witness statements earlier in proceedings, and certainly prior to allocation of a hearing date (PNL 35).
The PNL Practice Note is aimed at reducing costs and moving matters more quickly to hearing. It does this by focusing on reducing the number of experts expected to give evidence in personal injury matters (an issue identified as of particular concern (PNL 31). It also does this by requiring significantly more work to be undertaken prior to the First Directions Hearing than may have been the case in the past, including collaboration between plaintiff and defendant solicitors on experts, the issues to be addressed by those experts and whether a joint expert is appropriate. Preparation of witness statements will also be required earlier in the proceedings.
As a result, preparation costs are likely to be more “frontloaded” in the management of medical negligence claims than they have been in the past.
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