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Changes to the Clinical Negligence Pre-Action Protocol

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    A further blog considering the nature and impact of recent amendments to the protocol to be followed before issuing Court proceedings in clinical negligence cases.

    By Joachim Stanley

Clinical negligence lawyers are expected to comply with the Clinical Negligence Pre-Action Protocol.   In essence, the Protocol sets out a series of procedures which the parties – both Defendants and Claimants – are expected to go through prior to issuing claims at Court.  The aims of the Protocol are broadly:

1. to encourage early consideration of, and engagement with, the live issues between the parties;
2. to encourage the parties to narrow the differences between them if at all possible;
3. to promote early settlement without recourse to the Courts, and thus,
4. to limit the costs of litigation.

Recent amendments

The clinical negligence pre-action protocol has recently been revised and this was considered by my colleague in a previous blog.  As was commented, the revised Protocol introduces an earlier requirement for Claimants to notify Defendants of the likely basis for any claim by means of a ‘Letter of Notification’, which should allow Defendant to make prompter investigations at an earlier stage and will, from the Claimant’s perspective, hopefully avoid delays later on in progressing the claim because the Defendant will have started investigations early.

Claimants are also encouraged to “streamline” their investigations.  The Ministry of Justice’s guidance stipulates quite detailed changes to the Letter of Claim, which includes guidance on making early offers to settle, supported where possible by expert evidence and a document setting out the Claimant’s financial losses.    It also provides that Claimants should set out (a) whether they have favourable expert evidence, and (b) from which discipline(s).

Whilst the old rules did not preclude the parties from taking any or all of the above steps, it was common to concentrate upon liability, i.e., the issues of breach of duty of care (whether the treatment provided by the Defendant was so poor as to be negligent) and causation (the avoidable harm stemming from that).   The aim was to narrow the live issues between the parties.  By contrast, the revised Pre-Action Protocol encourages the parties to review the issues globally, in the hope of achieving early settlement without involving the Court.

Claimants generally only have a limited time from the date of the negligence in which to bring a claim – known as the limitation period.  Failure to bring proceedings at Court within that time could result in the claim’s automatic failure.  Because there may only be a relatively short time in which to investigate the claim, Claimant lawyers need to assess whether it has reasonable prospects of success.    They have therefore initially tended to concentrate only on the issues of breach of duty and causation, and not the compensation to be claimed.  This approach may need to be reviewed in appropriate cases.

Compliance with the Protocol

The Ministry of Justice’s guidelines encourage the parties to complete the Pre-Action Protocol rather than refusing to engage with it, for whatever reason.  Parties who refuse to engage with the pre-Action Protocol and proceed straight to litigation face “sanctions” from the Court.  Almost certainly, these sanctions will amount to penalties in costs.

The Ministry’s recommendations also stipulate that even if it is necessary to issue what are known as protective proceedings (that is, Court proceedings issued in order to ensure that the matter is not out of time), the parties are still asked to go through the Pre-Action Protocol. It is therefore recommended that stays in proceedings (which is essentially a pause in proceedings) should be agreed between the parties until the pre-Action Protocol has been complied with.

In recent years the Courts have been under enormous and increasing pressure, and it is not surprising that the “new look” Pre-Action Protocol aims to keep as many cases out of Court as possible.  It is to be hoped that the new Pre-Action Protocol encourages defendants’ legal representatives to focus earlier upon claims, and work with Claimants to achieve swifter settlements where appropriate.

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