Review of the Clinical Negligence Pre-Action Protocol

On 15 November 2021, the Civil Justice Council (CJC) produced an Interim Report entitled “Review of Pre-Action Protocols (PAP)” [1] for consultation on the subject of the PAPs, in which it canvasses a number of options for their reform. The consultation is based on answering questions via a particular form which can be submitted online. [2] The review includes the clinical negligence PAP, known as the PAP for the Resolution of Clinical Disputes (PAP-RCD).

There is a helpful history of the PAPs at Appendix 3 of the Report, explaining how they were introduced in 1999 with the Woolf Reforms and that their intention was to “set effective and enforceable standards for the efficient conduct of pre-action litigation” (as per Lord Irvine); ultimately the idea was that they would result in promoting early, satisfactory and low-cost settlement. However, they could not, and did not, form part of the then new Civil Procedure Rules (CPR) because the latter only applied to court proceedings. Nevertheless, they were introduced into the CPR indirectly through the Practice Direction (PD-Protocols), with punishment for breaches to be by way of costs sanctions should litigation be necessary. The PAP-RCD came into force on 26 April 1999 and has remained in force ever since with only relatively minor amendment. The PAP regime as a whole has undergone various reviews, recommendations and some amendment at various stages in the last 22 years. There is no doubt, however, that relatively major surgery to some of the PAPs, including the PAP-RDS, is overdue.

PAPs have played an important role in disputes and dispute resolution since their introduction. They form an important part of the requirement of disputing parties to recognise and adopt Alternative Dispute Resolution (ADR) wherever possible. However, as with all PAPs, the PAP-RCD relies heavily on there being a significant degree of good faith, trust and co-operation between the parties, and a genuine desire to avoid formal court proceedings. My experience of the PAP-RCD over the last 22 years has largely been one of disappointment and I view it to have been a rather missed opportunity, in that I consider it not to have been as effective in resolving disputes pre-action as I believe was anticipated, and no doubt hoped, when it was incepted. That is not to say the PAP-RCD does not have merit or has not in many respects been successful; it has, and I have settled a fair number of cases over the years when a Letter of Claim has resulted in an open admission in the Letter of Response and consequential negotiation between the parties to reach settlement without the need to issue a Claim Form.

However, more often than not I have had problems with the PAP-RCD. Some of the main areas of difficulty I have encountered include the following.

First, disclosure. It is not uncommon to encounter inadequate disclosure of both documents and key facts during the pre-action period, such that litigation ends up being necessary for the claimant to establish the true facts in the case. I have had particular problems with defendants refusing to provide evidence that is beyond that which is just contained within the medical records, such as in witness testimony or in non-medical record documents. Although I should add that this now tends to be less of a problem in cases in which a formal internal incident investigation has been carried out. Another problem identified in the CJC’s report is disclosure of medical records and there is no doubt that it is necessary for the parties early on to work from the same full, sorted and paginated set of records to avoid any confusion. Having said that, I frequently experience delays with provision of a full set of medical records and, even in the digital age, it can be a time-consuming and expensive process having to obtain a full set of records from hospitals, in particular in complex and involved cases.

Secondly, delay. Letters of Response are very often delayed beyond the current 4-month timeframe, often by many months, which then delays the whole legal process, frustrates claimants and creates bad feeling early on between the parties. I do understand that, because clinical negligence cases are dependent upon expert evidence, the timescales can often be difficult to adhere to as experts are busy and four months is not long, but notwithstanding that better communication as to reasons for delays to avoid ill-feeling is paramount. Having said that, defendants, particularly NHS Resolution, will (as far as I am aware) not entertain investigating a claim until receipt of a formal Letter of Claim, which is unhelpful. In the past, I use to write Letters of Notification upon receipt of a supportive breach of duty report, as per paragraph 3.10 of the current PAP-RCD but, given to my knowledge this never resulted in any investigative step being taken by NHSR, I ceased that practice as a waste of time and cost. I have even had the PAP-RCD process abused by a defendant (not in an NHS case but a private healthcare case), who chose not to serve a Letter of Response citing on a without prejudice basis that liability was not in dispute and they were seeking pre-action resolution, and then months later, when they realised the true value of the claim, they decided to deny liability and litigation became necessary. Such unacceptable conduct unsurprisingly creates significant ill-will and distrust of the defendant by the claimant and undermines faith in the PAP-RCD process.

Thirdly, deficient responses. Even when received, Letters of Response are often manifestly inadequate, simply denying liability without any or any proper explanation of the reasoning behind the denials even if they are based on independent expert evidence. Such a response again simply fosters distrust by the claimant of the defendant. There is no good reason not to provide a comprehensive and complete Letter of Response so the claimant can understand the basis behind the absence of any admissions. Failure to do so provides the impression of disinterest and an unwillingness to take the claim seriously, as well as making the claimant feel that unnecessary delay has been caused to the progression of the claim for no good reason. Many claimants are already distrusting of the defendant and a PAP-RCD that is handled carelessly and insensitively can cause ill-feeling that will pervade throughout the rest of the litigation. In such a situation, the PAP-RCD may well actually end up doing more harm than good. Sometimes I have had Letters of Response (usually but not always from the Medical Defence Organisations) which are not even based on independent expert evidence but on an opinion from the treating clinicians or from clinicians at the defendant Trust, hospital or GP practice, which are obviously not independent, and which are therefore inadequate even if they do save on costs. I have even had the quite extraordinary situation of a claim handler assert that one of their colleagues in their office was a doctor and it was their opinion upon which the Letter of Response was based!

Finally, dearth of sanctions for breaches. Notwithstanding the above, in my view the primary problem with the PAP-RCD is that there are no genuine sanctions for a breach. In my experience, the courts do not penalise defendants for breaches, even flagrant breaches, so there is no risk to a defendant for failing to comply with the PAP-RCD. I understand from the CJC’s Interim Report that the most common complaint in response to their preliminary survey (80% of respondents) was that courts did not consistently enforce the PAPs and apply appropriate sanctions, which is my experience with the PAP-RCD. As I see it, the only real incentives to a defendant to comply with the PAP-RCD fully and properly are, first, that, if they consider their claim to be difficult to defend, it may result in early settlement which may save them costs, whereas, secondly, if they think they will win the case, they may manage to persuade a claimant to abandon their claim. However, the risk of punishment for a breach is negligible and defendants, even NHSR, sometimes seem to consider that, because they may have received an opinion from their own clinicians or an independent expert supporting their defence, their case is somehow unimpeachable and, as such, make no or minimal attempt to try to avoid expensive court proceedings via pre-action ADR (or merely pay it lip-service so it appears they are engaging with it). The PAP-RCD does not seem to have had any meaningful effect on this uncompromising stance, in particular in more recent years.

The CJC has raised a number of options for consideration, including (but not limited to): making all PAPs available online via portals; formally recognising that compliance with PAPs would be mandatory (save for urgent cases); introduction of a “good faith obligation” to try to resolve disputes or narrow issues pre-action, albeit that it would not be prescriptive; introduction of a joint stocktake report or list as a final step before formal proceedings; introduction of a summary costs procedure for costs liability and quantum cases independent of CPR Part 8; and expanded powers for the courts and new processes for raising compliance issues to facilitate a more robust, consistent and timely approach to non-compliance with PAPs (which in my view is a very important consideration). The consultation closes on 24 December 2021.

The PAP-RCD is laudable in principle but flawed in practice; and, whilst it has merit, until and unless the issues of disclosure, delay, deficiency in response and dearth of proper sanctions are addressed and resolved, in my view, it will remain flawed. Hopefully this CJC review will, at least to a significant extent, adequately tackle these problems.

[1] https://www.judiciary.uk/wp-content/uploads/2021/11/CJC-PAP-Interim-Report.pdf

[2] https://www.judiciary.uk/wp-content/uploads/2021/11/CJC-PAP-QUESTIONS-FOR-CONSULTATION.pdf

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