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Jackson - A brave new world for clinical negligence

The impact of the Jackson reforms has been subject to intense speculation.  Even now, despite the initial wave of implementation of reforms going ahead as of 1 April 2013 there is uncertainty as to how the new regime will work.

The headline purpose of the reforms was to crack down on spurious claims and  reign in an out of control claims culture.  Sunil Abeyewickreme, Head of Dental Healthcare at DWF LLP considers what the actual outcome of the implementation of Jackson will be, in particular the impact the reforms will have on clinical negligence claims.

Lord Justice Jackson proposed nine recommendations to alter the clinical negligence claims landscape. 

These recommendations and an update on their progress is below:

Recommendation

Progress

Where the Pre-Action Protocol for the Resolution of Clinical Disputes is not complied with in that a health authority fails, without good reason, to supply copies of medical reports they should face financial penalties. 

This has been stalled.

The time for a Defendant to respond to a letter of claim should be extended from three months to four.  Letters sent to an NHS Trust or ISTC should be also sent to the NHSLA. Came in to effect  1 October 2010.  It was expected that the revised Protocol for April 2013 would also include the requirement for a claimant to send a letter of notification to the NHSLA and defendant prior to a letter of claim being sent – however this is now expected to take longer and so has been stalled

Came in to effect  1 October 2010.  It was expected that the revised Protocol for April 2013 would also include the requirement for a claimant to send a letter of notification to the NHSLA and defendant prior to a letter of claim being sent – however this is now expected to take longer and so has been stalled.

Where the NHSLA proposes to deny liability, in any claims, other than frivolous claims, independent expert evidence should be obtained in the four month period following receipt of the letter of claim. 

Implemented by the NHSLA.

The NHSLA, MDU, MPS and similar bodies should nominate an experienced and senior officer to whom claimant solicitors should, after the event, report cases of defendant lawyers failing to address the issues. 

Been in effect since February 2011, although there have been relatively few cases that have been reported. 

The Protocol should provide a limited period for settlement negotiations where the Defendant offers to settle without formal admission of liability. 

Changes to the protocol are expected for April 2013 – however this is now expected to take longer and so has been stalled.

Case management directions should be harmonised across England and Wales. 

From April 2013 CPR Rule changes will require parties to take as their starting point any relevant Model or Standard Directions. Our understanding is that there are Model Directions in Clinical Negligence cases.There are a new set of model directions and standard directions for multi-track cases in the statutory instrument showing the 60th update to the CPR which came into force in April 2013. These are to be taken as the starting point for directions by both the parties and the court (CPR 29.1).

Pilot of costs budgeting scheme. 

Has been put on hold, it has been mooted whether the costs management reforms more generally may mean this scheme is no longer required.

Regulations should be drawn up to implement the NHS Redress Act 2006. 

Requires the Department of Health to bring an NHS Redress Scheme in to force which it does not appear that it intends to at present.  This may in part have been delayed because of the proposal to extend the portal to low value clinical negligence cases.  However, the portal would only consider cases where liability is admitted, the NHS Redress Scheme would look at cases where liability is in dispute.

Extend the use of Alternative Dispute Resolution in clinical negligence cases. 

Proposal is thought to be implemented more gradually and there are hopes of changing attitudes towards ADR across the profession.

 

There are a number of other broader proposals made by LJ Jackson that will impact upon the clinical negligence landscape. 

Section 46 of LASPO 2012 abolishes recoverability of ATE insurance premiums.  In clinical negligence cases premiums to cover the costs of reports will still be recoverable subject to Regulation 2 of The Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013 which came in to force on 1 April 2013.  It has been argued that this will allow clinical negligence claimants to instigate a claim, but subsequently placing them in the same position as any other claimant in terms of funding their claim.

This is one of the most controversial reforms being proposed. The claimant lobby has raised concerns about the ability for claimants to bring clinical negligence claims, with some firms being thought to be preparing to leave the market.  The potential impact has been compounded with the removal of legal aid funding for clinical negligence cases.  This is an outcome that LJ Jackson has stated was never his intention.  Legal aid for clinical negligence cases for those who suffer neurological injuries while in the mother’s womb or which occur during or up to eight weeks after birth has been retained under Schedule 1, paragraph of the Legal Aid, Sentencing and Punishment of Offenders Act 2013.  Such a concession seems arbitrary but there is reluctance to expand this carve out provision.

The impact of these reforms has been compounded by section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which abolishes the recoverability of success fees from defendants where the claimant has a Conditional Fee Agreements signed on or after 1 April 2013.  This will be implemented by The Conditional Fee Agreements Order 2013.  Instead the CFA-funded party will pay the success fee, this is intended to give individuals a financial interest in controlling the costs being incurred in their claim.

It has been mooted that a number of firms may be unable to sustain or at least will have to cut back their clinical negligence practices as a consequence of these reforms.  Similarly, it is anticipated that Legal Expense Insurers and Claims Management Companies will be looking to expand their remit and look to the commercial litigation market to try and recover a loss of revenue. 

Whilst the ban on referral fees will apply in clinical negligence cases, referral fees are less common in this area and as such it is thought this may have a minimal impact on the clinical negligence market.

Nevertheless, it is not all good news for insurers.  Qualified one way costs shifting will mean that whilst a successful claimant recovers costs from a losing defendant, a successful defendant will not recover costs from a losing claimant, except for where the claimant has failed to beat a defendant’s Part 36 offer.

There will also be a 10% uplift on non-pecuniary general damages in tort claims.  This will apply where the successful claimant does fall within section  44(6) LASPO, which relates to claimants with Conditional Fee Agreements in place before 1 April 2013 .  Further guidance on this can be found in the case of Simmons v Castle.

The use of Damages Based Agreements is also being extended under section 45 of LASPO which is to be implemented by The Damages-Based Agreements Regulations 2013.  Such arrangements will be a means for solicitors to continue to take cases without requiring up front fees from claimants. 

 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.