The third quarter of the year has continued to be packed with judicial decisions, policy announcements and consultation processes. Those who thought the summer vacation would bring with it a quiet period were mistaken. The landscape for those who practise within the field of medical negligence continues to be turbulent.
On 21 July 2017 Lord Justice Jackson published his supplemental report “Review of Civil Litigation Costs”. Jackson recommends that there be a new intermediate track within the court system with a streamlined procedure for cases up to the value of £100,000. This intermediate track should be subjected to a grid of fixed recoverable costs. As for clinical negligence litigation, Jackson suggests that cases with damages valued up to £25,000 should be subject to a bespoke process with a grid for fixed recoverable costs. A working party is to be established to develop the process and grid. Further details on this, and the Civil Justice Council’s response, has yet to be published.
Lord Justice Jackson in his report reminded us all of the number and wide arranging scope of consultations/civil justice initiatives that remain outstanding. Those relevant to the field of medical and clinical negligence are:
- Implementation of the Briggs review (use of IT in the Court system),
- Ministry of Justice review of LASPO,
- Department of Health consultation/report on fixed recoverable costs in clinical negligence litigation, and
- Department of Health Rapid Resolution Redress scheme.
This remains a time of great uncertainty with frequent changes in the landscape.
On 7 September the Government announced its intentions to publish draft legislation to change the methodology used to set the discount rate. The new regime, we are told, will contain two significant changes. The first is that the discount rate will in future be set by reference to ‘low risk’ rather than ‘very low risk’ investments to reflect the actual investment habits of claimants post settlement. Secondly, the rate will be reviewed at regular intervals of at least every 3 years. There will be a period for public comment on the draft legislation before a further consultation on the actual discount is taken. Some commentators predict the discount rate to be between 0% and 1%. Provided the low risk investments referenced when setting the discount rate are those routinely used by claimants post settlement then this is a sensible option. One cannot help but wonder why this approach was not followed back in February 2017. This would have saved time, argument and the uncertainties and delaying tactics adopted by defendant insurers seen over the past 6 months.
The National Audit Office (NAO) published its report “Managing the costs of clinical negligence in trusts” on 7 September, co-ordinated with the discount rate review announcement. The NAO wasted a valuable opportunity to highlight the causes of costly NHS litigation. This despite Lord Justice Jackson promising the NOA was “investigating the manner in which clinical negligence claims are being handled on the defendant side.” Instead, the NAO focused on headline-grabbing estimated future annual spending figures which neither explained the increase in claims nor how they are conducted. The NAO also failed to delve into the impact NHS Resolution conduct has on the cost of clinical negligence litigation and the extent to which events leading to claims reoccur. These are long-running issues that vex claimant lawyers.
In addition to these consultations, the Courts have remained busy. The key decisions during the past quarter are summarised here.