Kerry Underwood

CLINICAL NEGLIGENCE: £100,000 IN COUNTY COURT ONLY

with 8 comments


On 22 April 2014 the minimum level for bringing a non-personal injury claim in the High Court jumped from £25,000 to £100,000, no doubt heralding a move to a fast-track of up to £100,000 with fixed recoverable costs.

The personal injury floor level remained at £50,000 and thus went from being twice the non-personal injury floor to half of it; again the likelihood is of a £50,000 personal injury fast-track with fixed recoverable costs, that is twice the current limit.

There is logic in this as the personal injury small claims limit remains at £1,000, that is just 10% of the general civil litigation limit of £10,000.

However there seems to have been a major error in relation to clinical negligence claims, where the minimum level before such a claim can be brought in the High Court jumped from £25,000 to £100,000 on 22 April 2014.

There was no consultation about this and it appears to have been unintended.  Clinical negligence claims were deliberately lumped in with general civil litigation claims so as to keep the minimum level at £25,000, not £50,000, presumably in recognition of the fact that clinical negligence claims are in reality a species of professional negligence rather than personal injury.

Article 5 (1) of the High Court and County Court Jurisdiction Order 1991 provided that a personal injury claim must be commenced in the County Court unless the value of the action is £50,000 or more.

The High Court and County Court Jurisdiction (Amendment) Order 1999 inserted a new article 4A into the 1991 Order, which provided that a money claim may only be commenced in the High Court if the financial value of the claim is more than £15,000 and at Article 6 it repeated (although with slightly different wording) the provision in the 1991 Order requiring the value of a personal injury claim to be £50,000 or more before it can be issued in the High Court.

Clearly the thinking was that any claim with a value above £15,000 was on the face of it sufficiently weighty to justify proceeding in the High Court unless it was a personal injury claim in which event the value had to be £50,000 before it could proceed in the High Court.  Therefore, the 1999 Amendment Order at Article 6(b) made it clear that for these purposes clinical negligence claims were to be excluded from the £50,000 requirement. That meant that the threshold for High Court claims (including clinical negligence claims) was £15,000 except for PI claims (excluding clinical negligence claims) where the threshold was £50,000.

Article 2 of the High Courts and County Courts Jurisdiction (Amendment) Order 2009 raised the £15,000 threshold to £25,000 but left the £50,000 higher limit for personal injury cases (excluding clinical negligence cases).

This meant that although a personal injury claim had to be worth more than £50,000 to go in the High Court a clinical negligence claim could be issued with values down to £25,000.

However, the High Court and County Court Jurisdiction (Amendment) Order 2014 at Article 2(7) amends Article 4A of the 1991 Order (as already amended) to substitute £100,000 in place of £25,000.

This means that the High Court jurisdiction for money claims now starts at £100,000.  However, the provision in article 5(1) of the 1991 Order that provides a £50,000 threshold for personal injury cases remains intact as does the provision that for this purpose a clinical negligence claim is not a claim for personal injuries.

Therefore a personal injury arising out of a road traffic accident or work place accident or whatever can be brought in the High Court if the claim is worth £50,000 but a clinical negligence claim has to be in excess of £100,000 to be brought in the High Court.

It may be that this was intended; after all other professional negligence claims have jumped from £25,000 to £100,000 as a High Court minimum.

I suspect it was not intended.

Clarification, and if appropriate, an amendment from the Ministry of Justice would be welcome.

 

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Written by kerryunderwood

July 2, 2014 at 12:52 pm

Posted in Uncategorized

8 Responses

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  1. What worries me about this type of thing is that the inability to bring a second tier appeal means the County Court is often being given a carte blanche to do what it likes without any oversight from a fully constituted appellate court. In general County Courts are a law unto themselves in many cases.

    Root

    July 2, 2014 at 2:15 pm

  2. Why is a clinical negligence action not an action which “includes a claim for damages in respect of personal injuries” so as come within Article 5 and therefore remain an exception to Article 4A?

    Martin Spencer QC

    July 9, 2014 at 1:36 pm

    • I think I can answer my own question! Article 5(3) expressly excludes clinical negligence claims from the definition of claims for damages for personal injuries, and they therefore do indeed fall within Article 4A and the new jurisdictional limit of £100,000.

      Martin Spencer QC

      July 9, 2014 at 2:28 pm

      • Indeed! Will you be delivering a fee note to yourself or was that one pro bono? 🙂

        Kerry

        kerryunderwood

        July 11, 2014 at 3:18 pm

  3. I think (but have not delved back to check) that it used to be the case that the complexity of the facts or law and/or general public importance of the case were factors that “trumped” value in ££ when it came to choice between HC and CC. So for example you could choose to issue a complex fatal Clin Neg case in the HC even though it failed to meet the applicable financial value.

    Interestingly the Practice Direction (7APD.2 ) now reads:

    2.1 Proceedings (whether for damages or for a specified sum) MAY NOT be started in the High Court unless the value of the claim is more than £100,000.
    2.2 Proceedings which include a claim for damages in respect of personal injuries MUST NOT be started in the High Court unless the value of the claim is £50,000 or more (paragraph 9 of the High Court and County Courts Jurisdiction Order 1991 (S.I. 1991/724 as amended) describes how the value of a claim is to be determined).
    2.3 A claim must be issued in the High Court or the County Court if an enactment so requires.
    2.4 Subject to paragraphs 2.1 and 2.2 above, a claim should be started in the High Court if by reason of—
    (1) the financial value of the claim and the amount in dispute, and/or
    (2) the complexity of the facts, legal issues, remedies or procedures involved, and/or
    (3) the importance of the outcome of the claim to the public in general,the claimant believes that the claim ought to be dealt with by a High Court judge.

    I have stressed the MAY NOT in 2.1 to contrast the MUST NOT in 2.2, the point being that the provision encouraging issue in the HC for cases of complexity and/or public importance is now subject to the threshold levels of £100,000 or £50,000 for PI.

    Why I wonder the distinction between MAY and MUST here? Does this leave it open for complex CN (as non PI cases) still to be issued in the HC even though worth under £100,000 on the basis that although they may not be so issued, there is nothing to say they mustn’t, so perhaps they may?!!

    I think I can anticipate your explanation for the “choice” of wording though…

    Richard Barcan

    July 14, 2014 at 5:23 pm

    • Richard

      The former Practice Direction 7 which has been replaced by the High Court and County Court Jurisdiction (Amendment) Order 2014 was identical in all relevant parts except for, obviously, the actual minimum value of the claim.

      As you point out paragraph 2.4 of Practice Direction 7 states that a claim should be started in the High Court if by reason of –

      (1) the financial value of the claim and the amount in dispute, and/or

      (2) the complexity of the facts, legal issues, remedies or procedures involved, and/or

      (3) the importance of the outcome of the claim to the public in general, the Claimant believes that the claim ought to be dealt with by a High Court Judge.

      However paragraph 2.4 is specifically made subject to paragraphs 2.1 and 2.2 and those are the two paragraphs which give the minimum value of a claim before it may be issued in the High Court.

      Consequently even if the conditions in 2.4(1) (2) and (3) are satisfied the claim cannot be commenced in the High Court unless the value is more than £100,000.00, or in the case of a personal injury claim, more than £50,000.00.

      It is unfortunate that different terms are used, “may” in relation to the £100,000.00 minimum and “must” in relation to the £50,000.00 minimum.

      However I think that the key word in each case is “not” rather than must or may and where it is a restriction, as in each of these cases, I think that there is no difference between “may not” and “must not”.

      Obviously if it was not a negative then there is a difference. “You may go to town today” means just that whereas “You must go to town today” is a command.

      However “You may not go to town today” and “You must not go to town today” mean the same in my opinion.

      Consequently I think it is just the usual very poor wording of the Civil Procedure Rules and the Practice Direction rather than there intending to be any other meaning.

      Consequently my view is that the difference in the wording does not leave it open for a complex clinical negligence case still to be issued in the High Court even though it is worth under £100,000.00.

      Was that the explanation you were anticipating?

      Under CPR30.3(2) a County Court has the power, having regard to the complexities of the case, to transfer it to the High Court and that would apply in appropriate circumstances in a clinical negligence case.

      CPR30.3(2) states

      “30.3 (2) The matters to which the court must have regard include –
      (d) whether the facts, legal issues, remedies or procedures involved are simple or complex.”

      Kerry

      kerryunderwood

      July 25, 2014 at 5:02 pm

      • Thank you. Yes, I am afraid I was rather anticipating that would be your response but thought it worth flagging up the discrepancy. Richard

        Richard Barcan

        July 28, 2014 at 9:36 am

  4. Thanks Richard – keep the comments coming!

    Kerry

    kerryunderwood

    August 11, 2014 at 1:21 pm


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