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A summary of key developments relating to the dissolution of the UK Parliament; procedure for determining litigation capacity; the Coroner Service inquiry; fixed recoverable costs in lower damages clinical negligence claims; alternative dispute resolution; and the law of apologies.
Dissolution of UK Parliament
Parliament was formally dissolved on 30 May 2024 and all Parliamentary activity ceased, temporarily stalling new consultations and potentially delaying the release of the outcome of prior consultations, statements and reports. Following the General Election on 4 July 2024, Parliamentary activity resumed on 9 July when newly or re-elected MPs resumed ministerial duties.
Contact: Giulia Monasterio
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Better guidance and training key to any new approach to determine litigation capacity
In April 2024, we submitted a response to the Civil Justice Council’s (CJC) consultation on the procedure for determining mental capacity in civil proceedings.
Creation of the working group was approved at the CJC's July 2022 meeting, following a request to the council by a legal practitioner who raised the shortcomings in the rules relating to the current procedure for determining capacity to conduct proceedings in civil claims.
The consultation launched in December 2023 and closed on 17 March 2024.
Here we provide an outline of the various themes covered in the consultation, along with a summary of our key points.
Contacts: Rob Tobin and Daniel Freeman
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Update on Coroner Service inquiry
On 23 May 2024, the outgoing Chair of the Justice Committee, Sir Robert Neill, confirmed that with a General Election having been called for 4 July and ahead of Parliament being dissolved a on 30 May, “the Justice Committees are required to cease work”. Adding that the Justice Committee would “therefore not be able to produce reports it had planned relating to its open enquiries”. This includes a report for ‘The Coroner Service – follow-up’ inquiry.
In a letter (of the same date) to the Minister for Courts and Legal Services, Sir Robert Neill, set out the Justice Committee’s findings as far as he was able to do so. A copy of the letter can be found here.
Among the findings referred to is the matter of a national Coroner Service for England and Wales – the Committee reiterating its earlier recommendation for a united single service. Sir Robert Neill acknowledging that: “While it would undoubtedly not be a panacea, it would afford an opportunity to standardise the service, allowing scope for national minimum service levels, and more consistency across England and Wales”.
In “the absence of a national service, the case for a national inspectorate for coroners is very strong”. Sir Robert Neill adds that the Committee “heard many times about unacceptable variations in service, with no mechanism for meaningfully addressing those differences”.
With regard to improving regional cooperation, the letter sets out that small changes on this aspect “could provide a relatively low cost and high impact way to promote consistency and smooth out local capacity issues”.
The outgoing Chair’s letter and the evidence submitted to the inquiry will be available to a new Justice Committee to be formed following the General Election.
Contact: Daniel Freeman and Rob Tobin
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Lower damages fixed recoverable costs (LDFRC) scheme: clinical negligence claims valued between £1,001 to £25,000
It was anticipated that implementation of the LDFRC scheme, initially intended to come into force in April 2024, could be delayed by six months or more. However, the announcement of a General Election adds further uncertainty.
Prior to the announcement of the General Election, the outcome of the supplementary consultation on disbursements in the LDFRC scheme was published on 8 May 2024. The Department of Health and Social Care confirmed the government’s intention to proceed with its proposals, subject to modifications. These include allowing recovery of “court fees for a Part 8 application for pre-action disclosure, to ensure that parties are able fairly to obtain evidence such as medical records needed to pursue their claim in a timely manner”.
In addition, allowing “recovery of disbursements in relation to applications for a stay in proceedings in addition to disbursements relating to court fees to issue proceedings, where there are risks associated with limitation”.
The government response also confirmed that “the LDFRC scheme will not extend to inquest costs and disbursements which have been incurred in claims which are subject to LDFRC scheme costs”.
Contacts: Christopher Malla and Roger Davis
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Civil Procedure Rule Committee consultation on the use and promotion of alternative dispute resolution
For some time both the government and senior judiciary have expressed their support for integrating alternative dispute resolution (ADR) processes, such as mediation, into the civil justice system.
In April 2024, the Civil Procedure Rule Committee (CPRC) launched a consultation on using and promoting ADR methods. In summary the CPRC is seeking stakeholder views on:
“Changes to 1.1 would add that dealing with a case justly and at proportionate cost includes, so far as practicable, using and promoting ADR methods. Reference to ADR within the overriding objective would underline that considering the use of ADR should be a key part of the court process.
Changes to 1.4 and 3.1 would clarify the position established in Churchill v Merthyr Tydfil that judges may order as well as encourage parties to participate in ADR procedure.
Changes to Parts 28 and 29 would add that courts must consider whether to order or encourage parties to participate in ADR for fast-track, intermediate track and multi-track claims.
Changes to Part 44 would add that failure to comply with an order for ADR or unreasonable failure to participate in ADR proposed by another party would come under the consideration of the conduct of parties when deciding to make any order about costs.”
The consultation closed on 28 May 2024.
Contact: Amanda Mead
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Consultation on the law of apologies
On 8 April 2024 the Ministry of Justice (MoJ) launched a consultation on the law of apologies to consider whether the existing legislation is adequate, or whether clarification or amendment would be useful. In the alternative to legislation, consideration will be given to extending the apology provisions in the pre-action protocols or to providing guidance in relation to other civil claims.
Healthcare providers are already required to provide an apology as part of the statutory duty of candour when an incident is investigated by the organisation.
The consultation closed on 3 June 2024.
Contact: Rob Tobin
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Healthcare
United Kingdom