The amended Pre-Action Protocol for Clinical Negligence: two years on

In April 2015, a new clinical negligence pre-action protocol came into force bringing with it a number of amendments. Pre-action protocols, of which there are currently 13, form part of the Civil Procedure Rules and are intended to set the standards that the courts expect of parties prior to court proceedings being embarked upon, with the purpose of trying to avoid litigation which the courts consider should be a last resort. As such, the protocols are designed to encourage openness and a sharing of information between the parties at an early stage. The protocol applicable to clinical negligence is called the Pre-Action Protocol for the Resolution of Clinical Disputes and it is published on the Ministry of Justice website.

The April 2015 changes to the clinical negligence protocol brought into play a number of new concepts. But have they made much of a difference two years on?

First, there was the Letter of Notification. This is a letter sent by a claimant to a defendant before that claimant has carried out a full investigation into a case, quite possibly even before any expert opinion has been obtained. The Letter of Notification is required to be forwarded by the NHS Trust to NHS Resolution (the protocol still refers to the NHS Litigation Authority, NHSR’s predecessor prior to April 2017) or other medical defence organisation/indemnity provider. The protocol provides a template Letter of Notification. In my experience, the problem with this step is that, at least in NHS cases, and seemingly as a rule, NHS Resolution will not investigate a claim until a formal Letter of Claim is served. Consequently, the Letter of Notification has often fallen on deaf ears.

I tend to serve Letters of Notification in every case in which I consider that it is readily apparent from the outset (as soon after my instruction as possible) that there is a good claim and why that is the case. However, I have on many occasions since the amendments in April 2015 served Letters of Notification based on the medical records and my own internal analysis of the case, often with the benefit of the hospital’s internal inquiry or serious incident report, only to have the NHS Trust/NHSR either not provide any substantive reply (which has been the usual response) or say that they will only investigate once they have received a formal Letter of Claim. Whilst I appreciate that Trusts cannot investigate every potential claim, this stance is usually a significant waste of time and costs and Trusts should be more discerning; having said that, I do have some sympathy as they no doubt receive many Letters of Notification or Claim which never materialise into formal proceedings (a situation not assisted by the Protocol’s stance that there are no sanctions if the subsequent Particulars of Claim differ from the Letter of Claim). Sometimes, though, I have managed to persuade the Trust/NHSR to investigate a case early on the basis of the Letter of Notification, but this has usually been in a case where there has already been a critical internal investigation report provided by the Trust, so there is some objective evidence upon which the Trust/NHSR can rely. Other than providing me with some useful ammunition in costs proceedings to argue about defendant conduct, two years on I feel that the Letter of Notification remains a mechanism lacking teeth.

After the Letter of Notification there follows the Letter of Claim. This is a letter sent by a claimant to a defendant after the claimant has carried out his or her investigation into the case, and is usually prepared with the benefit of expert opinion. As with the notification letter, the protocol provides for a detailed template for a Letter of Claim. This letter is to be copied to NHSR when served on the defendant Trust in NHS cases. Usually a Letter of Claim will be based upon expert opinion (because otherwise in reality it would have much the same standing as a Letter of Notification other than that it should result in NHSR investigating the case without further ado) and, if it is, it should say so and should name the discipline of expert(s). If the Letter of Notification has had no effect on the Trust/NHSR, then I usually obtain expert opinion on breach of duty and then serve a ‘”limited” Letter of Claim, limited in that not all

the expert opinion that is required has been obtained but hopefully enough to demonstrate the likelihood of ultimate success for the claimant, in an attempt to ensure the defendant engages with the claim at that stage. Fortunately, as this letter contains the words “Letter of Claim”, even if preceded by “limited”, it tends to galvanise the Trust/NHSR into investigating the claim properly, as frustrating as the delay to proper investigation may be for the claimant given that there is often little difference between the contents of the notification letter and the limited claim letter.

After the NHS Trust/NHSR’s investigation into the Letter of Claim has been completed, a Letter of Response or Reasoned Response is provided by the Trust, the NHSR or the Trust’s solicitors, or the relevant medical defence organisation. In my experience, these are a mixed bag: unfortunately many of these are still short and lacking in detail, requiring clarification that takes up further time and costs, as well as being a source of frustration to the claimant who will not infrequently end up being more entrenched in their position. There are also realistically few if any sanctions for such letters, notwithstanding they may not have been completed in the true spirit of the CPR. However, occasionally I receive a response that is comprehensive, understanding and well-reasoned, which is welcome not least because it can have a genuine impact on the future conduct of the case.

A Letter of Response is supposed to be served within 4 months of receipt of the Letter of Claim. Defendants usually require more time, certainly in the more complex cases, and it is not unusual for the Pre-Action Protocol not to be completed for 9-12 months post-Letter of Claim, so clients should be warned early on of a potentially long wait. However, from a claimant’s perspective, forcing the pace is not always wise, as not only is it more likely that an early admission will be forthcoming if the defendant has had the opportunity to investigate the claim properly but, if the claim is subsequently defended, the claimant will have a much clearer idea of the defence it likely faces when preparing the formal legal case by way of the particulars of claim if they have had a properly reasoned Letter of Response beforehand.

An interesting amendment in April 2015 related to what happens should the claimant be up against the statutory limitation period before it is possible to complete the Pre-Action Protocol. Whilst the Protocol makes it clear that the statutory time limits are not altered, it does state (paragraph 1.6.1): “If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in the Protocol, the parties should apply to the court for a stay of the proceedings while they so comply”. Use of the word “should” would appear to make this a mandatory, not discretionary, step. Accordingly, if a defendant seeks to force a claimant into issuing proceedings, for whatever reason, prior to completion of the Protocol (rather than voluntarily agreeing to a limitation extension), not only is such conduct likely to be viewed as outwith the spirit of the CPR and against the purpose of the Protocol, but it is in any event likely to have little effect other than to add to the costs because, once proceedings have been issued, it will in then be necessary to apply for a stay of proceedings to allow for the completion of the Protocol. It is difficult to see a court refusing any such request for a stay, so such defendant behaviour would seem to be somewhat pointless and simply incur costs and fuel bad feeling between the parties.

Naturally, Alternative Dispute Resolution (ADR) is encouraged in the protocol with the emphasis on litigation being a last resort. The form of ADR does not matter: be it discussion and negotiation (with or without formal Part 36 offers), mediation, arbitration, early neutral evaluation and/or Ombudsman schemes. What matters is that there are potential sanctions against the party who either refuses to enter into ADR or who is silent on the issue. It seems to me that attempts at ADR must be genuine: I do not consider the all too frequent offer to “drop hands” or proposal to attend mediation to listen to the claimant explain why they have a case to be “genuine” attempts.

Overall, the protocol is, of course, a good thing and, at least from my own experience, pre-action conduct generally has improved since its advent nearly 20 years ago; however, even two years after the amendments in 2015, I feel both that there remains still all too often insufficient engagement with the protocol appropriately early, in particular by the medical defence organisations/insurers rather than the NHSR/NHS Trusts, and that genuinely punitive sanctions for breaching the protocol are too rarely seen, making the process more toothless than it really should and needs to be. Hopefully pre-action conduct will continue to improve, though I suspect it may require some assistance from further amendments in due course.