by Louise O'Rourke , Martha Wilson April-09-2025 in Healthcare Law
In this fourth article in the ‘ Embracing Change’ series Louise O’Rourke and Martha Wilson welcome the introduction of Practice Directions HC131 and HC132 which come into effect on 28th April 2025. The new Practice Directions, introduced by the President of the High Court, will apply to all High Court clinical negligence actions, irrespective of when proceedings were commenced.
Practice Direction HC131 aims to facilitate the earlier resolution of clinical negligence claims and actively encourages the parties to consider and engage in mediation. This Practice Direction seeks to introduce both clarity and transparency to clinical negligence proceedings by mandating that certain information must be shared by the parties well in advance of any application for a court hearing date.
The Practice Direction provides that after a case has been set down for hearing, any party to a clinical negligence action may, on giving 28 days’ notice, apply for a date for Trial provided the following conditions have been met and confirmed in writing by a Certificate of Compliance:
- Fully pleaded case: the applicant must have fully pleaded all aspects of their case, including the provision of particulars of the alleged negligence, grounds of defence, and any pleas in relation to causation. All replies to particulars, further particulars of personal injuries or special damages, supporting vouching documentation (if required), and a final schedule of special damages (if applicable) must have been delivered. Whether prior to the application for a date for trial, or after a trial date has been set, the plaintiff obtains an expert report on any aspect of quantum they intend to rely upon, they shall provide particulars of any alleged additional injuries or updated special damages within six weeks of receipt. The Practice Direction provides that if the defendant intends to investigate or contest the relevant claim, they shall engage an appropriate expert within six weeks of receiving such particulars. If the defendant subsequently obtains an expert report on quantum that they intend to rely upon, they shall, within six weeks of receipt, provide particulars of that report. This is a continuing obligation on the parties, and applies also to all parties prior to the application for a trial date.
- Discovery: the applicant must have also complied with all outstanding discovery obligations including responding to any requests for voluntary discovery raised prior to service of the 28 days’ notice.
- Schedule of witnesses: the applicant must have exchanged or offered to have exchanged a complete schedule of all witnesses, both factual and expert, intended to be called at the trial.
- Exchange or offer to exchange expert reports: the applicant must have exchanged or have offered to exchange all expert reports intended to be relied upon at trial. Where such exchange has not yet occurred, the applicant must have made a bona fide offer to exchange expert reports, allowing the opposing party or parties in the action reasonable opportunity to do same.
- Mediation: as a condition of applying for a hearing date the applicant must provide an undertaking to offer mediation within three weeks, with mediation to take place within six weeks of the offer being accepted and, if not accepted, within six weeks of any subsequent offer of mediation made by the opposing party or parties. The undertaking referred to shall be taken as requiring the parties to engage constructively in mediation.
Judicial Discretion:
The court retains discretion to assign or refuse to assign a trial date, and can make orders or directions deemed appropriate. In cases of manifest urgency and/or cases where exceptional circumstances exist, the court can dispense with one or more conditions to allow the applicant to apply for a trial date, but the applicant must demonstrate that the urgency is genuine and/or that the circumstances are exceptional, and that no insuperable prejudice will be caused to the opposing party or parties as a result.
Sanctions for non-compliance:
The court may refuse an application for a trial date where the applicant has failed to comply with the Practice Direction or is non-compliant with an order or direction of the court or agreement of the parties, whether relating to pleadings, discovery or otherwise. Where an application for a trial date is contested, the court will treat the application as a case management hearing and may make such directions, costs orders or other orders as it considers just.
Delivery of Further Particulars or additional Expert Reports after a Trial Date is set:
If a party, without consent or the prior leave of the court, delivers further particulars of alleged wrongdoing or defence, injury or special damages or additional expert reports or schedules of special damages after the trial date has been fixed, the opposing or any affected party may apply to the court for an adjournment of the trial, or such further order as may be just. Where such an adjournment or order is deemed necessary, the court may make such order as to costs as it considers appropriate.
Practice Direction HC132 establishes a dedicated Clinical Negligence List for the purpose of managing High Court clinical negligence cases, to ensure that such cases receive focused attention and enhanced case management by experienced judges. It will be presided over by a Judge in Charge of the Clinical Negligence List who is experienced in dealing with clinical negligence proceedings. The Practice Direction makes provision for the making of interlocutory applications and for case management of clinical negligence claims.
Conclusion
It is clear that the momentum for change is gathering pace with the introduction by the President of the High Court of these concrete provisions which are designed to ensure greater sharing of information and to facilitate the earlier resolution of clinical claims. The introduction of a dedicated Judge in Charge of the Clinical Negligence List is one of the reforms we have been advocating for and we welcome its introduction.
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About the Authors
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Louise O'Rourke
Louise is a partner with our Healthcare team. She specialises in high value complex clinical and dental cases and particularly catastrophic brain and spinal injury cases. Louise works closely with healthcare professionals involved in internal investigations and on regulatory issues coming before the Medical Council and the Dental Council. She is an experienced advocate before the Coroners courts.
Martha Wilson
Martha is a partner in the Healthcare team at Hayes solicitors. She works primarily in healthcare litigation, defending personal injuries claims taken against the Health Service Executive as well as against individual medical and dental practitioners.
In addition to contentious matters, Martha also advises on healthcare care related non-claims issues and represents doctors and dentists in relation to complaints to the Medical Council and Dental Council.