Practice Note No. 104
REPEALED - Professional Negligence List
On 1 April 1999 a Professional Negligence List (the "List") will be established within the Common Law Division, to be administered by a Professional Negligence List Judge. A new Part 14C will be inserted in the Rules for this purpose.
It is intended that the following proceedings in the Common Law Division that include a claim for medical or legal professional negligence should be entered in the List:
(a) proceedings commenced in the Court on or after 1 April 1999; and
(b) other proceedings that the Court considers are suitable to be entered in the List.
This practice note applies to proceedings entered or to be entered in the List.
Practice Note 88 shall not apply to proceedings entered in the List.
Removal from the List
(1) Upon an order being made removing proceedings from the List, this Practice Note shall, subject to sub-para (2), not apply to the proceedings from the making of the order.
(2) The Court may direct that this Practice Note shall continue to apply to the proceedings to the extent stated in the direction.
(3) The making of an order removing proceedings from the List shall not affect any orders made or directions given prior to such removal.
(1) Proceedings in the List will be managed by way of conference hearings, the first of which will be appointed for approximately 3 months after proceedings are entered in the List.
(2) Where proceedings are entered in the List under Part 14C rule 3(2) (which relates to documents endorsed "Professional Negligence List"), the date of the first conference hearing will be given by the registry in a notice issued at the time of filing to be served by the filing party. Where entered pursuant to an order, parties with an address for service will be advised of the date by the registry.
(3) At a conference hearing, proceedings may be listed at a specified future date for a further conference hearing.
(4) Conference hearings will be held on a fixed date fortnightly.
Action prior to first conference hearing
A statement of claim should be served promptly so as to allow ample time for pre-conference preparation.
It is expected that the parties' solicitors will have discussed the case before the initial conference hearing and will have:
(a) filed defences and cross claims;
(b) held medical examinations;
(c) narrowed issues;
(d) agreed on suitable interlocutory orders, directions or arrangements;
(e) prepared a draft timetable for the future management of the proceedings; and
(f) prepared draft short minutes of any orders or directions to be sought at the conference hearing.
It should be noted that indemnity costs may be awarded in respect of work necessitated by an unreasonable failure to provide access to or copies of medical or hospital records before or after commencement of proceedings.
Action at conference hearings
At a conference hearing the Court may give directions or make orders as it considers appropriate with a view to the just, quick and cheap disposal of the proceedings. The orders or directions may relate to:
(a) the provision of any further information;
(b) the filing of other pleadings;
(c) the provision of any essential particulars;
(d) the making of admissions;
(e) the filing of lists of documents;
(f) the provision of copies of documents, including medical, hospital or legal records;
(g) the administration and answering of interrogatories;
(h) the service and filing of affidavits or statements of evidence;
(i) an early separate trial on liability;
(j) proceedings to preserve evidence.
Orders or directions relating to the provision of particulars, the filing of lists of documents and the administration of interrogatories will be made only upon demonstrated need being established in respect to particular matters.
Each party not appearing in person must be represented at any conference hearing by a barrister or a solicitor familiar with the subject matter of the proceedings and with instructions sufficient to enable all appropriate orders and directions to be made.
At any conference hearing:
(a) the Court may consider whether the proceedings are suitable for mediation and may direct the parties to confer upon this question;
(b) if the matter appears to the Court to be appropriate for resolution by mediationthe Court will endeavour to secure the consent of the parties to a referral of the proceedings for mediation; and
(c) if the parties consent to the referral, and agree as to who is to be the mediatorthe Court may give directions to enable the parties to be prepared for the mediation.
(1) Applications may be made:
(a) orally at a conference hearing;
(b) on notice returnable at a conference hearing; or
(c) by letter to the registrar requesting that the proceedings be given a conference hearing and stipulating the reason, a copy of which is to be served in the same way as notice of a motion,
and will not be included in the general applications list for the Division.
(2) Urgent applications, and applications by consent, may be made at any time by arrangement with the Professional Negligence List Judge.
Listing for hearing
(1) When ready for trial, proceedings will be entered in the Holding List (notwithstanding that they will remain in the Professional Negligence List) with no priority over other proceedings unless an order for expedition is made.
(2) All applications for expedition should ordinarily be made to the registrar but may be made at a conference hearing to the Professional Negligence List Judge.
Some months before proceedings are likely to be heard, a further conference hearing will be held to ensure that the proceedings will be ready for hearing.
Extension of time for service of statement of claim
It may be anticipated that, on an application for extension of the time for service of a statement of claim under Part 14C rule 7, an order will not be made unless all reasonable efforts have been made to serve the statement of claim.
(1) The Schedule to this Practice Note applies whenever a person is or has been engaged by a party with a view to giving expert evidence (in this paragraph called an "expert witness").
(2) The engaging party must, at the time of the engagement, provide the expert witness with a copy of the Schedule.
(3) A party who has, before commencement of this Practice Note, engaged an expert witness must provide the person with a copy of the Schedule.
(4) Subject to paragraph 4, this Practice Note does not limit the application of provisions relating to experts in the Rules or in other Practice Notes.
The Professional Negligence List Judge may arrange for the registrar to carry out various functions in respect of the List.
23 December 1998
1. In this Schedule a person engaged by a party with a view to giving expert evidence is referred to as an "expert witness".
2. An expert witness's paramount duty is to assist the court impartially. That duty overrides the expert witness's obligation to the engaging party . An expert witness is not an advocate for a party.
3. A report made on or after 1 April 1999 by an expert witness should (in the body of the report or in an annexure):
(a) include the person's qualifications as an expert;
(b) specify the assumptions on which the opinions in the report are based (a letter of instructions may be annexed);
(c) specify any examinations, tests or other investigations on which he or she has relied; and
(d) specify any literature or other materials utilised in support of the opinions.
4. An expert witness should notify the engaging party of any change in the opinions in a report, and that party should then notify any other party who has been or is subsequently provided with the report accordingly.
5. (1) The court may direct the parties to request expert witnesses to:
(a) confer on a "without prejudice" basis;
(b) endeavour to agree; and
(c) make a joint statement in writing to the Court specifying matters agreed and matters not agreed together with the reasons for any such disagreement.
6. It is expected that an expert witness will exercise his or her independent, professional judgment in relation to such a conference and statement, and that an expert witness will not be instructed or requested to withhold or avoid agreement.