Clinical Negligence Claims Agreement

The Clinical Negligence Claims Agreement ("CNCA") has come into effect as of 26 August 2024. It supersedes the earlier Covid-19 Clinical Negligence Protocol. The parties to the agreement are AvMA, SCIL and the NHSR.  

 

It is an agreement designed to promote collaboration and encourage positive behaviour between the NHSR and Claimants involved in Clinical Negligence disputes. The full agreement can be viewed online here. The Agreement is to be reviewed every 26 weeks and any party who is a signatory to it has to give 4 weeks' notice of termination.  

 

The CNCA includes some useful references to costs generally which are set out below: 

 

- Interim Payments - The CNCA states that parties ought to adopt a reasonable approach to interim payments for both damages and costs. Notably, it states that all requests should be responded to within 28 days. Parties can refer to this if there was to be no response in this time frame (see below regarding Conduct).  

 

With respect to claims which are subject to Costs Management, the CNCA provides that the starting point for a Payment on Account "should be a reasonable percentage of the budgeted costs for the completed phases with a reasonable proportionate of the incurred costs." The CNCA refers to Puharic v Silverbond Enterprises Limited [2021] which saw the court allow 90% of budgeted costs and 70% of incurred costs. 

 

For non-budgeted cases, the CNCA states that the starting point should be a reasonable proportion of the estimated incurred costs to date. There's no definition of what reasonable is or would be.  

 

- Conduct - It is proposed that parties can refer to non-compliance to the CNCA in disputes relating to costs. This will rub both ways with either side able to highlight conduct issues which the court could take into account when considering what order for costs to make and also when assessing costs. 

 

- ADR - The CNCA states that along with the fact that consideration should be given, wherever possible, to ADR, the Defendant should have instructions, where appropriate, on any payment on account of damages or costs they prepared to make at any settlement meeting.  

 

-Budgeting - The CNCA recommends that parties exchange costs budget in good time. Presumably this is to encourage negotiations and prospective agreement between the parties.  

 

- Early Disclosure - NHSR should provide early disclosure which should help reduce the cost of investigating claims. 

 

- BACs Payments - The CNCA makes clear that the preferred (and more efficient) method for any payment is by way of BACs and firms should use the same wherever possible for payments of both damages and costs. 

 

- Limitation - The CNCA states that limitation extensions are to be dealt with on a case by case basis. It states a reasonable limitation extension would be up to 6 months. It is beneficial to parties to seek limitation extensions to save the costs of proceedings and where one is not requested it could lead to arguments about costs recovery. Where the NHSR is the indemnifying organisation and is not yet on notice of the claim, the CNCA stipulates any limitation extension request be sent to a dedicated e-mail - nhsr.limitation notification@nhs.net.  

 

- Extensions of Time - The CNCA states that reasoned and reasonable requests to extend deadlines to comply with court directions or for the Defence should not be opposed saved in exceptional circumstances.