Civil Procedure (Amendment No.3) Rules 2024 - A focus on Clinical Negligence Claims

The Civil Procedure (Amendment No.3) Rules 2024 have now been published and will come into force on 1 October 2024.

The relevant document can be accessed in full here. 

We set out a useful summary of the most salient points, as they relate to clinical negligence claims.

Alternative Dispute Resolution

The most extensive amendments made are in respect of ADR. The intention is clear; to recognise the importance of ADR in case management throughout the lifetime of the claim and, as is now specified, the fact that it is integral to achieving the Overriding Objective. 

To reflect this, CPR Part 1 will be amended to include a new definition as to what dealing with a case “justly and at proportionate cost” entails, specifically;

1.1 (2) (f) promoting or using alternative dispute resolution

Under CPR Part 1.4 (2) and 3.1, the Court’s duty to manage cases will be extended from “encouraging” the Parties to use ADR, to expressly giving them the power to Order it (albeit that some Courts were already implementing this practice). This will apply across the board to fast, intermediate and multi-track cases as well as the small claims track.

Moreover, under CPR Part 44.2 (the Court’s discretion as to costs), the conduct of the Parties when addressing the issue of costs (CPR Part 44.2(5)) will now include a new consideration;

(e) whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution.

These amendments are stated to have been made with the intention “to promote the use of alternative dispute resolution in response to the decision of the Court of Appeal in Churchill v. Merthyr Tydfil CBC [2023] EWCA Civ 1416”.¹

Whilst the Court has always expected parties to engage with ADR, it is clear now that the Court can (and likely will) Order ADR and failure to comply could see costs sanctions imposed. 

Whilst ADR should be considered throughout the claim, and by utilising more informal methods (such as WP correspondence and discussions), to seek to agree to an express commitment being included in the draft Directions Order ahead of the CCMC to demonstrate an appreciation of the Rules to the Court should now be standard conduct. This is likely to be an expectation going forward.

Contempt Warning 

Where one party is seeking to establish Contempt of Court by another, which in clinical negligence claims will most commonly follow a successful finding of fundamental dishonestly, CPR Part 81 applies. 

CPR Part 81.4 (Requirements of a Contempt Application) already stipulates that the Defendant in those proceedings must be advised of their rights, to include the right to legal representation and an interpreter. However, this will be expanded to include the need to specifically advise in the Application of the right to remain silent and an express warning of the risk that the Court may draw adverse inferences from that silence, if the right is exercised. This is to bring the civil process more in line with the criminal process.

Definition of ‘Judge’ 

CPR Part 2 has been amended to ensure consistency in the language used and make clear that the term includes Masters and District Judges.

Time limit to appeal from Court of Appeal to the Supreme Court 

CPR Part 52 will now expressly state that an Application must be made within 28 days after the date of the decision of the Court of Appeal which the Appellant wishes to appeal.

170th PD Update

This came into force on 18 July 2024 and the most notable point for clinical negligence matters are the amendments to both PD 51R (Online Civil Money Claims Pilot) and PD 51ZB (The Damages Claims Pilot) to, primarily, extend both pilot schemes by 1 year to 1 October 2025 to allow for additional testing and to enable the complete roll out of the additional ‘case progression’ and ‘application’ features where both Parties are legally represented (excluding the County Court at Birmingham).

¹Civil - Civil Procedure Rules (justice.gov.uk)