Mediation in Low Value Claims

Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, heard last year, confirmed that a Court can order a mediation (or other non-court alternative dispute resolution). 

The Ministry of Justice has now implemented the small claims mediation service pilot scheme, the first part of its strategy in implementing mediation to all county court claims. When a paper money claim (i.e. one issued outside of the online portal) is made in the County Court, up to the value of £10,000, the parties must now take part in a free one-hour mediation to see if issues can be narrowed and resolved. This is expected to extend to online money claims later in the year. It is anticipated integrating mediation into the court process will result in tens of thousands of successful out-of-court resolutions. The scheme came into force on 22 May 2024 and will run until 21 May 2026. To be caught by the pilot, the claim must:

• be a money claim for a specified sum
• be valued at no more than £10,000
• involve two parties maximum.

Currently, this is only in respect of claims that would be allocated to the small claims track and this does not include complex claims, RTA claims, PI claims or any claims where there are any safeguarding concerns. Therefore, whilst not directly applicable to the medical malpractice claims we routinely see, if the pilot is successful, a similar model, to include higher value county court claims and potentially, injury claims, has not been ruled out. If so, this is likely to impact upon the beauty and aesthetic claims we see in the first instance, but success may lead to wider role out to other more complex medical malpractice claims.

Alternative dispute resolution (ADR) consultation

The Civil Procedure Rule Committee proposed the following draft amendments to the Civil Procedure Rules to:

• include reference to the using and promotion of ADR in the overriding objective as a necessary part of the just and proportionate running of a case
• specify that the court may now order (and not only encourage) parties to participate in ADR
• include reference to courts needing to consider whether to order or encourage parties to engage in ADR
• specify that a failure to comply with an order for ADR or failure to participate would constitute a conduct issue when considering orders about costs.

These proposed changes encourage the parties consider ADR as a necessary component of any claim rather than an option, hopefully reducing costs and shelf life of cases.

Medical malpractice insurance: mid-year review 2024  

• Case law update
  
  • Holmes v Poeton Holdings Limited [2023]
  • Man v St George's University Hospital NHS Foundation Trust [2024]
  • Clarke v Poole and others [2024]
  • Spellman v Portsmouth Hospitals University NHS Trust [2024]
  • Healey v McGrath and Ramsay Healthcare UK Operations Ltd [2024]
  • PHJ v HMA (unreported)
  • Cases still to be heard: CCC v Sheffield Teaching Hospitals NHS Foundation Trust
• Fixed Recoverable Costs: where are they?
• New damages guidelines published in April 2024
  
  • Sexual/ physical abuse claims
  • Technology
  • 10% uplift to account for future inflation
• Discount Rate Review: what might happen?
• Expansion of the Damages Claims Portal (DCP)

Get in touch

Aiming to be the firm of choice for medical malpractice insurers and those who they cover, we advise and support on all aspect of claims, inquests and associated proceedings.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Ed Mellor or Sarah Bryant.