Jackson says one-third of his clinical negligence proposals at risk

The architect of the government’s civil justice reforms has admitted the ‘jury is still out’ on a third of his proposals for clinical negligence.

Lord Justice Jackson said there had been little progress on three of the nine recommendations made when his report on costs was published in 2010. The proposals so far stalled include financial penalties for health authorities that fail to provide copies of medical records and a costs management scheme for clinical negligence cases.

Jackson also voiced doubts that regulations can be drawn up to implement the 2006 NHS Redress Act following an impasse in talks between the NHS Litigation Authority (NHSLA) and claimant groups. The act was intended as an alternative to litigation and would mean the NHSLA offers a redress package in return for a waiver of the right to sue.

‘Without wishing to sound unduly pessimistic,’ Jackson added, ‘I must confess to some doubt as to what will emerge from these interminable discussions.’

During his 12th lecture on the costs reform programme, delivered last week, Jackson said three of his recommendations had been implemented within a year of his report.

The time for defendants to respond to a letter of claim has increased from three months to four; the NHSLA now instructs independent experts to give evidence on liability; and defendant bodies now each nominate an officer as a point of contact for claimant solicitors.

Jackson noted that harmonisation of case management directions and a limited period for settlement negotiation should be enacted from April 2013.

In a recurring theme across his lectures, Jackson again spoke in favour of mediation as a way of settling clinical negligence cases. He said more training was needed for both solicitors and judges to change attitudes to alternative dispute resolution - there is still a ‘wall of opposition’ to mediation from solicitors and counsel in clinical cases where liability and/or causation are in dispute, he said.