New High Court Practice Directions in Clinical Negligence Cases – A Welcome Development

On 09 April 2025, the President of the High Court issued two new Practice Directions in Clinical Negligence cases aimed to ensure that clinical negligence actions are managed in a structured way and to facilitate earlier resolution of claims where possible. In this article, Yvonne Joyce, Partner CKT considers the new Practice Directions which come into force on 28^th April 2025.

Practice Direction HC132 establishes for the first time, a dedicated Clinical Negligence list. Practice Direction HC 131 outlines the procedure for application for trial dates and clinical negligence actions.

1          PRACTICE DIRECTION HC132 – CLINICAL NEGLIGENCE LIST

Practice Direction HC 132 establishes for the first time, a dedicated Clinical Negligence List within the Dublin Personal Injuries list of the High Court.

• The Practice Direction will apply to all Clinical Negligence proceedings from the 28th of April 2025, irrespective of whether they were commenced prior to or after its introduction and will encompass all proceedings in which a claim for damages for personal injuries arising out of alleged negligence or breach of duty in the provision of clinical or health care, treatment or advice arises.

• The Clinical Negligence List will apply to all stages of clinical negligence proceedings including mentions, applications for dates for trial, interlocutory applications, case management directions hearings, hearings and cost applications, but shall exclude motions, including ex parte applications, ordinarily listed in the Monday common law motion list.

• The President of the High Court will assign a Judge in Charge of the Clinical Negligence list (“Judge in Charge”) who will be experienced in dealing with clinical negligence proceedings.

• Where interlocutory applications are necessary, these applications and applications for case management directions shall be heard in the Clinical Negligence list only, with prior leave of the Judge in Charge which may be applied for ex parte. Once such leave has been granted, applications for case management directions and any other interlocutory relief shall be made to the Judge in Charge and heard in accordance with the usual rules.

• The Judge in Charge may at his or her discretion, or upon application by a party, issue case management directions to facilitate the efficient preparation and hearing of clinical negligence proceedings. Such directions may include timetables for:-
• • the exchange of expert reports
  • directions, where the law permits, for mediation
  • orders relating to witness statements or expert evidence
  • any other directions necessary to ensure the fair and expeditious resolution of clinical negligence proceedings.

2          Practice Direction: HC131 Clinical Negligence Proceedings – Applications for Trial Dates

This Practice Direction outlines the procedures for application to trial dates in clinical negligence actions. The Practice Direction will come into effect on 28 April 2025 and will apply to all clinical negligence actions irrespective of when proceedings were commenced.

• CONDITIONS FOR MAKING APPLICATION FOR TRIAL DATE

After the 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: –

a) Fully Pleaded Case:

• The Applicant must have fully pleaded all aspects of their case, including Particulars of Negligence, grounds of defence, pleas regarding causation, contributary negligence and any required amendments to the Pleadings or Defence.
• 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.
  • Where the Plaintiff obtains an expert report on any aspect of quantum they intend to rely upon, they shall within six weeks of receipt, provide Particulars of any alleged additional injuries and Special Damages arising from it. This obligation applies prior to the application for a date for trial.
  • 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 obligation applies prior to the application for a date for trial.
  • The Applicant must have also complied with all outstanding Discovery obligations including responding to any requests for Voluntary Discovery raised prior to the service of the 28 days’ notice.

b) 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.

c) Exchange of 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, unless otherwise permitted by law.
• 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 the same.

d) Mediation:

• As a condition of applying for a trial date, the Applicant must provide an undertaking to
  • offer mediation to the opposing party within three weeks of the date on which the trial date is fixed,
  • engage in such mediation within six weeks of the offer being accepted and,
  • in the event that the initial offer is not accepted, to engage in mediation within six weeks of any subsequent offer of mediation made by the opposing party or parties prior to trial.

• The undertaking referred to above shall require the applicant and the opposing party or parties to engage constructively in any such mediation and to comply with all reasonable directions of the mediator, including the timely provision of position papers, legal submissions, or other documents in accordance with the time frame specified by the mediator.
• However, where an Applicant has satisfied the Court that mediation will not assist the parties in achieving settlement, this requirement will not apply.

• Judicial Discretion

The Court retains discretion to assess whether the conditions set out in the Practice Direction have been satisfied and to make any Orders or Directions deemed appropriate.

The Practice Direction is cognisant that in urgent cases it may be necessary to apply for an early trail date before the conditions above have been met.  It provides that in cases of manifest urgency, and/or where exceptional circumstances exist, the Court may dispense with one or more of the conditions to allow the party to apply for an early trial   date. However, the Applicant must demonstrate to the satisfaction of the Court, that the urgency is genuine, that the circumstances are exceptional, and that no insuperable prejudice will be caused to the opposing party or parties as a result.

The function of the Court with respect to the Practice Direction will be exercised by the Judge in Charge of the Clinical Negligence List.

• Sanctions for Non-Compliance

The Court may refuse an application for a date of trial, 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 as to Pleadings, Discovery or otherwise.

Where an application for a date for trial   is contested, the Court will treat the application as a case management hearing and may make such directions and Cost Orders or other consequent Orders as it considers just.

• DELIVERY OF FURTHER PARTICULARS OR EXPERT REPORTS AFTER A TRIAL DATE IS SET

If following  trial date being fixed, 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, the opposing or any affected party may apply to the Court for an adjournment of the trial, or for such further Order as maybe just.

Where such an adjournment or Order is deemed necessary, the Court may also make such Order as to costs as it considers appropriate.

COMMENTARY

The stated purpose of introducing a dedicated Clinical Negligence List in the High Court is to ensure that clinical negligence proceedings are managed in a structured manner, with such cases receiving focused attention and enhanced case management generally by experienced judges.  In addition, Practice Direction HC131 further seeks to facilitate the earlier resolution of claims, while also ensuring that cases are properly prepared for trial.

Both Practice Directions are a welcome development and should serve to allow for earlier resolution of cases and ensure that “trial by ambush” will be avoided in clinical negligence claims. The President of the High Court has also stated that they will be kept under regular review and will be amended or modified, where necessary.