Some post-Defence considerations in clinical negligence cases
Once a clinical negligence case has been through the Pre-Action Protocol for the Resolution of Clinical Disputes and it is clear that the parties have not been able to resolve the dispute, it will then be necessary for the Claimant to begin court proceedings by way of issuing the Claim Form at Court and then serving on the Defendant the Claim Form and Particulars of Claim (and associated documents, such as a medical report and provisional Schedule of Loss and Damage) setting out the Claimant’s case in formally legally pleaded form.
The Defendant will then respond within a month (or possibly two by agreement between the parties) with their formal Defence, which sets out which allegations in the Claimant’s claim as set out in the Particulars of Claim the Defendant admits, denies or puts the Claimant to proof and, if denied, the Defendant must also set out his reasons for the denial and state his own version of events if they are different from that of the Claimant. The Particulars of Claim and Defence, known as “statements of case” (they used to be called pleadings), will now have set out the respective positions of both parties in the claim and the strengths and weaknesses of each parties’ case should be somewhat clearer.
The next procedural step will be receipt of a Directions Questionnaire and a date for the Costs and Case Management Conference, at which, amongst other things, the timetable for the remaining steps in the case to trial will be set. However, the post-Defence period can be a useful time for a Claimant to take stock of his or her case and evaluate whether there are any “interim” measures or steps that might usefully be taken. Some examples that may be worth thinking about are set out below; these can also be considered at any time after service of the Defence up to close to trial, so they should be constantly in the mind of the Claimant (and also the Defendant).
First, it may be worth having a think about preparing a Reply to the Defence under CPR Part 16.7. In my experience, Replies are quite unusual in clinical negligence cases. However, there may be an issue in the Defence that requires a specific response. I did recently serve Replies in a case in which the Defence contained factual information that the Claimant had not (and could not have, as they did not know) anticipated, so the Reply was an opportunity for the Claimant to respond to the additional or new factual matrix, as well as highlight the Claimant’s case on matters on which it appeared from the Defence as if the Defendant had not fully understood the Claimant’s case.
I also think about serving CPR Part 18 Requests for Further Information (RFI). These can be very useful if something asserted by the Defendant is unclear in the Defence and, therefore, needs clarification. This may, for example, be a factual matter which is within their knowledge but not within the Claimant’s knowledge; or more detailed information may be required about a specific assertion in the Defence to clarify it. It is notable that Part 18 requests do not just apply to statements of case and can be used at any time during the proceedings. They are not very widely used in my experience and my feeling is that they are probably not used enough, as they can be very helpful in flushing out additional information relatively early on in the timetable. They should be used judiciously and thoughtfully, though.
Another potentially useful interim mechanism is the Notice to Admit Facts under CPR Part 32.18. Such a Notice can be served any time up to 21 days before trial, so it is not necessary to use this mechanism at the statement of case stage, but it is one worth considering both at this stage and throughout the rest of the case. For example, if a fact was not admitted in the Defence but it seems that it should have been, as there appears to be no basis upon which it cannot be, then it may be worthwhile seeking to use this Notice as the mechanism to force the admission that should have been in the original Defence.
I will also always have a think about whether to enter judgment at the post-Defence stage if it has not already been entered and there are admissions contained within upon which judgment can be entered, for example any admissions of breach and/or causation that are in the Defence and sometimes which had not been made prior to this point. Surprisingly, admissions are sometimes made in the formal Defence even when there has been a full denial in a Letter of Response: I have had cases where a Letter of Response denying breach of duty was served, followed a few weeks later by a Letter of Response denying causation, and yet a full admission of both breach and causation was made in the formal Defence once proceedings had been formally issued and served.
If I do enter judgment, then I consider that it is important to consider obtaining interim payments on account of both damages and costs. The former is important because it can enable a Claimant to begin the setting up of an appropriate care and therapies regime and to begin their rehabilitation and treatment: this may be especially important in cases in which prognosis is uncertain and treatment is necessary. Or it may just assist the Claimant to have some of their damages early for a multitude of other reasons. If judgment is entered, it is also mandatory for the courts to consider whether to make an interim payment on account of costs and this is something that I routinely include in all judgment orders other than in very rare circumstances. In cases in which it is likely that the quantum aspect of the proceedings will be lengthy, it is worth seeking the liability-related costs to be assessed “forthwith”, as that ensures that such costs can be sorted out and paid whilst the quantum case remains ongoing.
It is also at this point worth thinking about Summary Judgment under CPR Part 24 or even a “strike out” under CPR Part 3.4. The latter tends to focus on the case as pleaded whereas the former can involve the court reviewing the state of the evidence, albeit limited at this stage. With respect to Summary Judgment, the test involved is fairly stringent and, therefore, the Claimant must be fully satisfied that the Defendant genuinely has “no real prospect” of successfully defending the case and there is “no other compelling reason for a trial”. Summary Judgment is rare in clinical negligence cases in my experience, and even rarer immediately post-Defence because the evidence has not yet been disclosed and so it is likely to be too early in the proceedings for such an application to be successful, but it is a mechanism to keep in the back of one’s mind.
Based on the pleading in the Defence, I will also consider carefully whether I need any additional evidence, be that factual (documentary or witness) or expert, but particularly the latter. This is because it is necessary to obtain permission from the court to rely on specific expert evidence at trial, so it is important to establish at this stage if and what additional expert evidence is likely to be required.
Finally, depending on the nature of the case, I will always consider with my Claimant client whether we should be making a Part 36 Offer at this stage or, at the very least, making overtures to the Defendant of the possibility of facilitating settlement with the other side by way of the various forms of Alternative Dispute Resolution.
As can be seen above, and the list is by no means exhaustive, there a number of matters to be considered and weighed up once a Defence has been served and the lie of the land in the case has become clearer. There are often no “right answers” and each of the above mechanisms should be viewed on their own merit and on the basis of each case’s own individual circumstances, but in some cases there can be tactical and/or other advantages to the careful use of one or other of them, so do keep them in mind: and the same applies to Defendants, too, of course!