Industry Update March 2024
Practitioners involved in Clinical Negligence will be well aware of the various changes that have come into play over recent months as the Government reforms start to take shape. In this update we talk about the extension of Fixed Recoverable Costs in Clinical Negligence cases and the planned introduction of a Low Value Clinical Disputes Scheme, as well as providing some thoughts on recent key cases and noting some other sector news.
FRC Extension to CN
We had the welcome confirmation in February, that FRC will only apply to CN cases valued between £25,001 and £100,000, provided that there has been a FULL admission of liability and causation in the Letter of Response to the allegations set out in the Letter of Claim.
The Amendment of Part 26 is as follows:
6.“(ii)
there has been an admission of liability in full, which means that the defendant accepts that the claimant has suffered loss, including the injury set out in the letter of claim under the Pre-Action Protocol for the Resolution of Clinical Disputes, caused by the defendant’s breach of duty of care; and
(iii)
the admission in paragraph (ii) is made in the defendant’s letter of response provided in accordance with the Pre-Action Protocol for the Resolution of Clinical Disputes,
provided that the defendant has not raised a defence to the claim under the Limitation Act 1980(3);”;
See The Civil Procedure (Amendment) Rules 2024 (legislation.gov.uk)
If you ever have a query regarding Fixed Recoverable Costs, then you may find our FRCConnect community useful. With over 800 members involved in various discussion groups and a free calculator this is proving to be a valuable resource to the legal industry.
Low Value Clinical Disputes Scheme
In the February minutes of the Civil Procedure Rules Committee, published in early March, there was nothing substantive about the LVCD scheme (cases with a value of between £1501- £25,000), other than a report is “provisionally programmed” to be presented at the next CPRC meeting in March.
The relevant paragraph of the Minutes is:
” 78. Clinical Negligence Fixed Recoverable Costs (FRC) (AL(23)184): Senior Master Cook confirmed progress was ongoing. The matter is provisionally programmed in for a report to the March 2024 meeting.”
See cprc-mins-2-feb-2024.pdf (publishing.service.gov.uk)
An introduction date of April 2024 is now impossible and a question remains if the scheme could be introduced in October 2024 … or indeed at all…
Recent Case Law
Turner & Anor Sheffield Teaching Hospital NHS Foundation Trust & Anor [2023] EWHC 3452 (KB)
In Turner the Claimant brought an action against the NHS Trust alleging negligence shortly after he was born. The Claimant made an application for disclosure of statements made by the Trust’s employees to the Second Respondent, the Healthcare Safety Investigation Board. This is a statutory body set up to investigate a series incidents of adverse outcomes in clinical practice.
The NHS Trust stated that it could not provide the statements because these were not documents in its custody or control. The HSIB said it should not disclose the statements because it could undermine the basis of their investigation Applications.
Master Brown granting the Claimants Application said:
“A trial judge faced with deciding this issue would need to see these documents. This is a claim of the utmost importance to the Claimants, and is, of course, important to the Defendant, this being a high-value claim, and I have no doubt balancing that interest, notwithstanding the interests of those in retaining confidentiality, it is appropriate for these transcripts or recordings to be disclosed.”
The case of re PW
The case of re PW came before Her Honour Judge Hilder on the 24 January 2024. Whilst this case concerned the appointment of an ‘in-house’ IFA / investment manager, the issues raised could undoubtedly also impact those Deputy firms where there is a connection with the appointed IFA / investment manager (a joint venture or other arrangement).
The key issues appear to be whether the use of a ‘beauty parade’ and a ‘score card’ approach of ensuring PW/their family of the connection between the Deputy firm and the IFA, is sufficient to address any conflict of interest that exist where there is such a connection. Judgement is awaited.
Hadley v Przybylo
The long-awaited Court of Appeal case in which Kain Knight’s very own Mark Brighton was involved, Hadley v Przybylo, was heard on the 28th February 2024, with the Judgment handed down on March 15th.
The key issue before the Court of Appeal was;
“Whether the inclusion of solicitor attendance time in a budget, for attending case management meetings with medical and other professionals in the course of management of the Claimant’s rehabilitation needs, and for meetings with financial and court of protection deputies said to be part of inputting into a Schedule of Loss are in principle costs which may be included in a budget.”
In its skeleton argument, the Defendant accepted that there needs to be some liaison between the Claimant solicitor and the case manager and/or Deputy but the question was the extent of that liaison. Also, the Defendant did not disagree with the claimant’s submission that the proper test of whether costs were recoverable inter partes was not whether the costs were “progressive” but whether those costs were “of use and service, relevant and attributable” to the claim.
Master McCloud, at first instance, decided that, as a point of principle, such costs were not recoverable as they did not ‘progress’ the case. Lord Justices Coulson, Dingemans and Birss allowed the Appeal finding that, in principle such costs are recoverable, but the extent to which they are recoverable is a matter for the costs Judge to determine against a test of reasonableness.
Solicitors acting for Claimants can breathe a huge sigh of relief as there is now clarity regarding the recoverability of rehabilitation related legal costs.
To read the full judgement, click here.
Other News
–Fletchers Group has acquired serious injury specialists Serious Injury Law Ltd.
–Simpson Millar acquire the assets and trading name of Novum Law.
-The NHS England National Patient Safety Team is seeking views on whether the existing Never Events Framework remains an effective mechanism to drive patient safety improvement. A link to the consultation is Never event framework consultation – NHS England – Citizen Space
Author Ian Cohen, Commercial Development Consultant, Kain Knight
