Part 20: Medical Negligence Claims

163. Compliance with protocol

Parties in medical negligence claims are to comply with the Protocol for Medical Negligence Cases in the General Division of the High Court (“protocol”) at Appendix H of these Practice Directions. A breach by one party will not exempt the other parties in the claim from following the protocol insofar as they are able to do so.

In exercising its discretion as to costs, the Court will consider compliance with the protocol. If non-compliance with the protocol has led to unnecessary costs, the Court may make the following orders:

an order disallowing a defaulting party his or her costs, or some part of his or her costs, even if he or she succeeds; (b) an order that the defaulting party pay the other party or parties their costs of the proceedings, or part of those costs; and (c) an order that the defaulting party pay those costs on an indemnity basis.

The Court will consider compliance with the protocol in exercising its discretion when deciding the amount of interest payable and may make the following orders:

an order awarding a successful party who has complied with the protocol interest from a date earlier than the date from which he or she would otherwise have been entitled to obtain interest; and (b) an order depriving a successful party who has not complied with the protocol of interest in respect of such period as may be specified.