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Lauren Karmel

The Clinical Negligence Claims Agreement 2024 (‘the Agreement’) is now effective. The Agreement has been developed in collaboration with the NHS Resolution (NHSR),  Action against Medical Accidents (AvMA) and the Society of Clinical Injury Lawyers (SCIL). As from 27th August 2024, the Agreement replaces the COVID-19 Clinical Negligence Protocol (‘the Protocol’) established in 2020 and aims to improve claims management practices.

Lauren Karmel of our Clinical Negligence team has prepared a useful summary which includes key points on the Clinical Negligence Claims Agreement 2024.

Parties to the Agreement refers to any defendant indemnified by a defence organisation which is a signatory to the Agreement (including GPs indemnified by NHSR) as well as Claimants represented by firms of solicitors who are either members of AvMA’s Panel or Lawyers Service, or members of SCIL or any other organisation who becomes a signatory to the Agreement.

The key points are as follows:

  1. Parties should be allowed to refer the Court to the Agreement should there be non-compliance if there are subsequent issues regarding incurring unnecessary costs. However, referral to the Court should only occur to demonstrate factual matters, and not to request the Court to adjudicate over the Agreement’s intentions.
  2. The Agreement applies to all civil claims under domestic law (including the HRA 1998) and ECHR.
  3. If a party has a case where limitation is already suspended under the terms of the Protocol,  the limitation period is now suspended for another 12 months from 27.8.24, unless specific limitation extension dates have already been agreed with NHSR members, case handlers or panel solicitors. The expectation is that the further limitation extension will be agreed provided the Claimant explains what progress is being made in investigating the claim and when the Defendant is likely to receive a Letter of Claim.
  4. If a firm is not a party to the Agreement, but has taken over conduct of a case that did have the benefit of a limitation suspension under the Protocol, they are not entitled to benefit from the Agreement. In those cases, firms that have conduct of cases that are unable to benefit from the Agreement have six months from 27.8.24 to separately negotiate a further suspension of the limitation period on a case by case basis.
  5. For inquests, parties have 8 weeks from the conclusion of the inquest to notify of their intention to bring a civil claim. In recognition of the fact that additional time is required to obtain Grant of Probate / Letters of Administration, provided that written notice is given in accordance with the Agreement, the limitation period will be suspended for 9 months from the date the Coroner delivers their conclusion for any claims identified either before or after the conclusion of the inquest. This includes HRA 1998 / ECHR claims.
  6. Reasoned and reasonable requests to extend the deadline to comply with Court directions / an extension of time for service of a Defence will not be opposed save in exceptional circumstances and where possible will be made with consent of both parties. Where there is a request for an extension of time to comply with directions, then evidence should be provided to substantiate the reason for the request.
  7. The parties should, at the Pre-Action Protocol stage, explore unilateral or mutual without prejudice exchange of liability evidence. The parties should endeavour to actively engage in the consideration of mutual without prejudice exchange of liability evidence, before proceedings are issued, in an attempt to narrow the issues.
  8. Claimants are to provide NHS Resolution with reasonable notice (28 days if possible) if proceedings are to be issued so the parties can explore dispute resolution before the issue of proceedings. The purpose of the notification is to support the desire to consider dispute resolution prior to the issue of proceedings. Wherever possible, this should be done to cover all issues including breach and causation with a view to early settlement if at all possible.
  9. Where a Claimant is required to travel to a consultation with a Defendant’s expert, that Defendant shall be required if so requested, to pay in advance the reasonable travel and subsistence costs for the Claimant and a chaperone (if required).
  10. Following service of the Letter of Response, in the absence of settlement of both liability and quantum, the parties should review their positions and consider whether there should be a “stock take” discussion between the parties to identify whether it is possible to resolve the claim. The parties should explore during this “stock take’ discussion without prejudice exchange of liability evidence in an attempt to narrow the issues on liability. The parties should also explore whether mediation or another form of dispute resolution would be appropriate before proceedings are issued.

A copy of the Agreement can be found here.

Lauren is a leading clinical negligence junior and is ranked in The Legal 500 2024 guide. She specialises in all areas of clinical negligence, including obstetrics, oncology, ophthalmology, orthopaedics, and emergency medicine. Lauren is sought after to advise on cases involving multiple expert disciplines. She has a special interest in clinical negligence claims involving provisional damages, and birth injury claims. Read more here.

The above article is not intended to provide and does not constitute legal advice. The author accepts no responsibility for any errors and / or omissions set out in the above article, nor any responsibility for subsequent reliance on the same.