Mackintosh v Sheffield Teaching Hospitals NHS Foundation Trust

Potentially large numbers of similar clinical negligence claims do not, without more, justify delaying claims that are ready to proceed. Where each claimant’s advice and circumstances are materially individual, the absence of a true common issue may make coordinated management inappropriate. The court should progress issued and served claims while monitoring whether further claims materialise. Any coordination must remain proportionate and consistent with the parties’ duty to assist the court in furthering the overriding objective under the Civil Procedure Rules 1998.

The claimant brought a clinical negligence claim concerning alleged failure to advise about the material risks and alternative treatments associated with implantation of a transobturator mesh tape device. The claim had been transferred from Sheffield County Court to the Queen’s Bench Division because related vaginal mesh litigation was being managed there.

The claimant sought directions designed to facilitate coordinated case management of five issued claims and a larger number of anticipated claims. The central issue was whether the court should delay progression of the issued claims pending the possible emergence of a substantial group of similar cases.

1. Directions and outcome. Directions were made for disclosure, witness statements, exchange of expert evidence and schedules of loss. A further CCMC was ordered for 15 February 2022. The court encouraged agreement of similar directions in the other issued claims.
2. No automatic justification for delay. Although the claims raised strikingly similar alleged breaches of duty and might eventually be numerous, each claim arose from advice given in unique circumstances. The potential existence of a limited pool of experts and pressure on solicitors’ resources did not itself justify delaying claims that were ready to proceed.
3. Coordination and common issues. The absence of a true common issue was material. Unlike product liability litigation alleging a defect in an implanted device, these negligence claims involved individual causes of action. A selected group might assist future case management, but coordination should follow evidence that a substantial number of claims had actually been issued and would proceed.
4. Overriding objective. The parties’ discussions and any proposed bespoke pre-action process had to be viewed in light of their duty under rule 1.3 of the Civil Procedure Rules 1998 to help the court further the overriding objective. Further delay was not in the interests of justice.
5. Future administration. If further claims were issued, the court requested that claim forms and statements of case identify the litigation as “TVT/TOT/TVM mesh implant (consent) Litigation”, enabling the files to be linked and assigned within the court’s electronic case-management system.

The claim was commenced in Sheffield County Court and transferred to the Queen’s Bench Division on 30 November 2018. This judgment determined directions at an adjourned costs and case management hearing; no appeal history was stated.