New court orders exempt clinical negligence cases from costs management

The High Court has begun sending out orders stating that clinical negligence claims will not be subject to costs management, it has emerged.

According to Elite Law Solicitors – which incorporates HM Law Costs Draftsmen – they relate to cases which have been issued but where no order in relation to costs management has been made. “It is unclear whether this will apply to cases which are issued from now on and if so for how long,” the update said.

It continued: “The orders list the case for a CMC between October 2015 and January 2016 and direct that costs estimates must be exchanged within 14 days of the order (not 14 days before any hearing) which may be in the form of Precedent H. In other words, there is no need for a costs budget in cases where such an order is made.

“This is no doubt as a result of Lord Justice Jackson’s comments in May of this year, where he suggested that clinical negligence cases which were awaiting case management conferences due to be held between October 2015 and January 2016 be released from the requirements to help clear the backlog. The undoubted result of these orders will be that solicitors will need to prepare costs estimates on an urgent basis for any cases where they are awaiting directions in relation to the first CMC.”

A spokesman for the judiciary said: “The court has a standing discretion to disapply the costs budgeting/management provisions in individual cases. As a temporary measure, to clear the backlog of cases, the Queen’s Bench Masters responsible for the case management of clinical negligence cases are exercising this discretion in relation to cases listed before them between October 2015 and January 2016. This approach will be kept under review.”

In his Harbour Litigation Funding lecture in May, Jackson LJ noted that in London there were delays of up to nine months for listing case and costs management conferences in clinical negligence cases. He recommended a “one-off release” from costs management for all cases which already have CCMCs listed for between October 2015 and January 2016. They should instead be “called in for old-style case management conferences at the first opportunity”. This was part of a wider call to allow the court to opt out of costs management “if it lacks resources to do so without causing significant delay and disruption to that or other cases”.

However, responding to the idea, the Master of the Rolls Lord Dyson said that, while the proposals to deal with delay are “worthy of the most careful consideration” and he was sure that judges would do their best “conscientiously” to apply such new rules, “I fear that the ‘lack of resources’ card will be played in many cases and that there is a real danger that costs management will become the exception and not the rule in clinical negligence cases”.

 

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19 Aug 2016

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