Welcoming New Clinical Negligence Practice Directions

Two new Practice Directions from the President of the High Court mark a major step forward in streamlining how clinical negligence claims are handled. Coming into effect on 28 April 2025, the new “Clinical Negligence List” and updated trial procedures will bring greater structure, predictability, and efficiency to what are often complex and lengthy proceedings. Our Medical Law team explains what the changes mean in practice and how they could help parties resolve claims faster and more cost-effectively. A must-read for healthcare providers, insurers, and practitioners navigating clinical negligence litigation.

The President of the High Court has issued two new Practice Directions, namely HC131 and HC132, intended to enhance the efficiency and management of Clinical Negligence proceedings. Published on 8 April 2025, the Directions will take effect from 28 April 2025. They introduce welcome procedural improvements to the handling of such claims within the High Court, strengthening the structure of existing lists and case management processes.

HC132 – Introduction of a “Clinical Negligence List”

The long-anticipated Clinical Negligence List will be introduced in the High Court from the start of the new Court Term on 28 April 2025. Designed to improve the management of claims arising from alleged breaches of duty in the provision of clinical care and treatment, the dedicated list is expected to bring much-needed structure and efficiency to these complex proceedings. Its arrival will undoubtedly be widely welcomed by legal practitioners and affected parties alike.

This new list allows for Clinical Negligence cases to be managed by judges who have specific experience in clinical negligence, throughout all stages of proceedings. While motions, including ex-partes applications, will remain within the usual Monday Common Law Motion List, other applications will rest with the Clinical Negligence List. These include:

• “For Mentions”
• Trial date applications
• Interlocutory applications
• Case management hearings
• Hearings, and
• Cost applications

In addition, interlocutory applications and applications for case management directions will now be heard within the Clinical Negligence List, subject to prior leave being granted by the Judge in Charge. This Judge, who will be the High Court Judge assigned to manage the Personal Injuries List, will oversee the operation of the new list, providing continuity and judicial oversight. The case management directions may include:

• Timetables for exchange of reports
• Directions for mediation, and
• Orders relating to witness statements or expert evidence

Given the often complex and multifaceted nature of clinical negligence claims, which can consequently be drawn out for long periods of time, we welcome the introduction of a designated Clinical Negligence List. With more structured Court oversight, it is anticipated that this will ensure that the claims are fairly managed throughout in a coordinated and focused manner. We foresee this dedicated list benefiting and assisting all parties in progressing clinical negligence claims efficiently, with the ultimate result of speeding up the resolution or determination of claims.

HC131 – Clinical negligence trial date applications

A second new and significant Practice Direction issued by the President of the High Court, Mr Justice David Barniville, is High Court Practice Direction HC131. It provides practical guidance and criteria on the procedural steps all parties to litigation must take before a hearing date can be fixed for trial in the new “Clinical Negligence List”, outlined above. In the future, this will ensure greater clarity and consistency in the preparation of cases for trial.

The central purpose and objective of HC131 is to improve the efficiency of the High Court lists while facilitating the timely resolution of clinical negligence claims. In addition, it aims to generally improve the efficiency of case management within these claims, which are, more often than not, complex, nuanced and involve multiple parties. This second new Direction is a welcome addition to the area of clinical negligence, and it is expected that it will be fully embraced by both clinical negligence practitioners and parties alike.

From 28 April 2025, HC131 will apply to all clinical negligence proceedings before the High Court regardless of when proceedings were issued. This includes claims which will now be under the remit of the new “Clinical Negligence List”.

There will now be reciprocal obligations on all parties to a clinical negligence action to ensure that a case is ready to proceed to trial before a fixed trial date is actually assigned.

Applying for a trial date

HC131 states that once a case has been set down for trial and following 28 days’ notice to all affected parties, an applicant can apply for a trial date in a clinical negligence action once the following four criteria have been satisfied. These are:

1. Fully Pleaded Case

• Pleadings: The applicant must have fully pleaded all aspects of their claim, which includes identifying and defining all issues which will be before the Court at the trial of the action. Any necessary amendments to the pleadings or defence must have been made before the application. In addition, particulars of personal injuries and/or special damages with supporting vouching documentation, must have been already delivered by the relevant parties.
• Expert reports: Parties must have fully pleaded their quantum investigations prior to the application. In terms of the timelines, the plaintiff is required to provide particulars of any alleged additional injuries or special damages within six weeks of receiving any quantum report[s] they intend to rely on. Similarly, if the defendant intends to contest the claim, they will need to engage an appropriate expert within six weeks of receiving the particulars and provide those particulars to the plaintiff within six weeks of receipt of their report.
• Discovery: Another prerequisite is that applicants must have complied with all outstanding discovery obligations.

2. Schedule of Witnesses

The applicant must have exchanged or offered the exchange of a complete schedule of all factual and expert witnesses intended to be called at trial.

3. Exchange or offer of exchange of expert reports

In circumstances where expert reports have not yet been exchanged, any party bringing an application must show they have made a bona fide offer to exchange reports and have given the opposing party or parties a reasonable opportunity to respond. HC131 does not indicate what could be determined as a reasonable period of time, but the spirit of the Direction would indicate that efficiency and mutual cooperation is expected.

4. Mediation

The fourth and final criteria relates to mediation, which is an ongoing priority and focus for the judiciary and parties alike, and is actively encouraged and endorsed by the Courts. HC131 now specifically seeks to both promote the increased use of mediation, while also aiming to achieve much earlier mediations and resolution generally.

Consequently, before the application for a trial date is made, the applicant must provide an undertaking to offer mediation to the opposing party or parties within three weeks of the date being fixed. They must engage in the mediation within six weeks of the offer being accepted by the opposing parties or party. In the event that the initial offer is not accepted within this timeframe, then the applicant is required to engage in mediation within six weeks of any subsequent offer of mediation made by the opposing party or parties prior to the trial. It is noted that the mandatory undertaking requires the parties to constructively engage in the mediation process. This includes compliance with reasonable directions and timelines proposed by the mediator. Finally, it is acknowledged that HC131 does not apply to situations where the applicant has satisfied the Court that mediation will not assist in achieving resolution.

Notably, all of the above criteria must be confirmed in writing by a Certificate of Compliance before the application is made.

Delivery of further particulars or additional Expert Reports after a trial date is set

While trial dates will be fixed once the criteria are satisfied, HC131 fully acknowledges circumstances where a party delivers further pleadings or reports after the trial date has been assigned. In these circumstances, it explicitly allows any affected party to apply for an adjournment and the Court will take into consideration the circumstances when considering costs orders.

Judicial Discretion & Non-Compliance

Despite the above criteria, it is an inherent part of the HC131 that the Court retains a discretion to assign or to refuse a trial date for non-compliance, and to make any orders or directions that it deems appropriate. In cases which may be described as having “manifest urgency” or “exceptional circumstances”, which is often unfortunately the case in clinical negligence proceedings, there is provision for the Court to dispense with one or more of the criteria and allow a party to apply for an early trial date. In doing this, the Court must be assured that the urgency is legitimate, and no party will suffer any prejudice.

Comment

These two key Practice Directions are welcome additions, which together will no doubt achieve more efficient, cost-effective, streamlined management of clinical negligence claims for both practitioners and parties alike.

For more information and expert advice on navigating clinical negligence claims, please 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.