Justice Plan 2023 – A Step Closer to Clinical Negligence Reform?

The Justice Plan 2023 is the third annual Justice Plan, which aims to deliver the goals of the Department of Justice’s Strategy 2021 to 2023. It is structured around five overarching goals. The most relevant to healthcare litigation is the second goal - “Improve access to justice and modernise the courts system.” We discuss some key objectives of this goal including proposals relating to pre-action protocols, periodic payment orders, increased judicial resources, reduction in legal costs, the establishment of a Mediation Council of Ireland and assistance to coroners.

Pre-Action Protocols

While provision was made for the introduction of Pre-Action Protocols (PAPs) in 2015[i] there has been little progress to date. PAPs are a series of steps which must be followed by both parties before a clinical negligence claim is litigated. PAPs would prompt prospective litigants to make early disclosure of the specific nature of their claim. They would also narrow areas of disagreement and cause the parties to consider alternatives to litigation.

The aim of introducing PAPs is to try to resolve clinical claims at an earlier stage and thus reduce legal costs. The Justice Plan aims to introduce new regulations which hopefully are a step closer to the introduction of PAPs in Ireland.

Periodic payment orders and the discount rate

Periodic payment orders, or “PPOs”, are a means to compensate those who have suffered catastrophic injuries by facilitating future payments for the cost of future care and medical treatment needs. PPOs have not been used since a 2019 High Court decision[ii]. The Court held that the current PPO legislation, which provides indexation of PPOs by reference to the Harmonised Index of Consumer Prices (HICP), will result in under-compensation of catastrophically injured plaintiffs.

The Justice Plan proposed the passing of legislation to allow the Minister to set an indexation rate. The Courts and Civil Law (Miscellaneous Provisions) Act 2023 commenced on 31 July 2023. Section 16 of this Act allows the Minister to have regard to a broad range of factors when making regulations to set an indexation rate. This indexation rate will then be reviewed within a five year period to assess its suitability for PPOs. It is hoped that these awaited ministerial regulations specifying a new indexation rate will lead to a revival of PPOs.

Another objective of the Justice Plan is to establish an expert group to make recommendations on the discount rate. The discount rate is the rate of interest applied to calculate the current value of the cost of future losses. It is proposed that regulations can then be made to take account of these recommendations.

Judicial resources and legal costs

The Government has committed to increase the number of judges in two phases, with an additional 24 judges in 2023. This will be complemented by implementation of the Courts Service Modernisation Plan and reforms to the frequency, location and management of courts. It remains to be seen if these reforms will include the creation of a designated court list for clinical negligence claims.

There are also plans to conduct independent research on ways to control legal costs. In addition, it is proposed that civil legal aid will be made available to those participating in the new assisted decision-making legal framework.

Mediation Council of Ireland

In order to reduce legal costs and the length of legal proceedings, the Justice Plan supports the establishment of a Mediation Council of Ireland. Mediation is frequently successful in the early resolution of clinical negligence claims. It is hoped that the establishment of the Council will further support the alternative access to justice for clinical negligence claimants.

Coroners

Another objective of the Justice Plan is to support all coroners in their roles and the Dublin Coroner in concluding the Stardust Inquest. The Justice Plan promises a review of the coronial service, including consultation on the future of the service. This review is long overdue and we believe would be welcomed by all stakeholders and users of the service.

Conclusion

The Department of Justice’s wide ranging Justice Plan makes worthy promises to update and modernise the operation of the civil justice system in Ireland. We hope that the Justice Plan will bring closer the much-needed proposed reforms in clinical negligence litigation.

For more information on successfully defending medical negligence claims, contact a member of our Medical Law team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[i] Legal Services Regulation Act 2015

[ii] Hegarty (a minor) v HSE [2019] IEHC 788