New Practice Directions Introducing Dedicated Medical Negligence List and Mediation Should Mean Quicker Resolution of Cases

Case Preparation:

The Direction mandates that any party to medical negligence proceedings may apply for a trial date, provided they have given 28 days' notice to all affected parties and satisfied specific conditions confirmed in writing by a Certificate of Compliance. These conditions include the requirement for a fully pleaded case, encompassing all aspects of the claim, such as particulars of negligence, grounds of defence, pleas regarding causation, contributory negligence, and any necessary amendments to the pleadings or defence. Additionally, all replies to particulars, further particulars of personal injuries or special damages, supporting vouching documentation, and a fully quantified schedule of special damages must be delivered.

The Direction also imposes a continuing obligation on the parties to provide particulars of any alleged additional injuries or special damages arising from expert reports on quantum within six weeks of receipt. This obligation extends to both plaintiffs and defendants, ensuring that all relevant information is exchanged in a timely manner. Compliance with outstanding discovery obligations, including responding to requests for voluntary discovery, is another prerequisite for applying for a trial date.

Judicial Discretion

Judicial discretion remains a cornerstone of HC131, allowing the Court to assign or refuse to assign a trial date and make any orders or directions deemed appropriate. In cases of manifest urgency or exceptional circumstances, the Court may dispense with one or more of the conditions set out in the directive and permit a party to apply for an early trial date. This flexibility ensures that genuine urgency and exceptional circumstances are accommodated without causing insuperable prejudice to the opposing party.

Sanctions for non-compliance with HC131 are stringent, with the Court retaining the authority to refuse an application for a trial date where the applicant has failed to comply with the directive or an order of the Court. The Court may treat contested applications as case management hearings and issue directions and cost orders as it considers just. Furthermore, if a party delivers further particulars or additional expert reports after the trial date has been fixed without consent or prior leave of the Court, the opposing party may apply for an adjournment or further order, with the Court making appropriate cost orders.

Mediation:

A significant innovation introduced by HC131 is the requirement for mediation as a condition of applying for a trial date. The applicant must undertake to offer mediation to the opposing party within three weeks of the trial date being fixed and engage in such mediation within six weeks of the offer being accepted. Mediation's important role in achieving amicable resolutions and reducing the adversarial nature of litigation, is well established in Ireland since its introduction some years ago. The Direction stipulates that the parties must engage constructively in mediation and comply with all reasonable directions of the mediator, including the timely provision of position papers, legal submissions, or other documents.

Dedicated Medical Negligence List:

Practice Direction HC132 concerns the establishment of a dedicated list for medical negligence cases to be heard, or as it is termed, a Clinical Negligence List. This has long been called for by practitioners on both sides of litigation his initiative is designed to ensure that clinical negligence proceedings receive focused attention and enhanced case management by experienced judges, familiar with the complexities inherent in such cases.

The primary objective of HC132 is to provide a structured framework for the management of clinical negligence proceedings. This directive encompasses all claims for damages arising from alleged negligence or breach of duty in the provision of clinical or healthcare, treatment, or advice. The scope of the Clinical Negligence List is comprehensive, applying to all stages of proceedings, including mentions, applications for trial dates, interlocutory applications, case management directions hearings, hearings, and cost applications. However, it excludes motions, including ex parte applications, ordinarily listed in the Monday Common Law Motion Lists.

The Clinical Negligence List will be presided over by the judge assigned to manage the Personal Injuries List, referred to as the Judge in Charge of the Clinical Negligence List. This judge, with the consent of the President of the High Court, will assign cases within the Clinical Negligence List to judges drawn from those assigned to the Personal Injuries List who possess expertise in dealing with clinical negligence proceedings. This ensures that cases are handled by judges with the requisite knowledge and experience, thereby enhancing the quality of judicial oversight and decision-making.

The Direction also empowers the Judge in Charge of the Clinical Negligence List to issue case management directions to facilitate the efficient preparation and hearing of clinical negligence proceedings. These directions may include timetables for the exchange of expert reports, directions for mediation where the law permits, orders relating to witness statements or expert evidence, and any other directions necessary to ensure the fair and expeditious resolution of clinical negligence proceedings.

These Practice Directions represents a significant, long-overdue reform that stands to reduce the time it takes to resolve these cases considerably as well as reduce the backlog of cases, and provide a more structured and efficient legal process for injured patients, ensuring that they are not faced with such protracted litigation, in order to receive the justice and compensation they deserve.

Written by: Johan Verbruggen