Introduction of a new protocol
The situation the country as a whole has faced during this Covid 19 Crisis has affected may work practices and the legal profession is one of those. There has been a recognition of the particular difficulties faced on clinical negligence matters during this time, which rely on medical expert opinion in considering both liability (causation) and quantum and where many experts have been called to healthcare’s frontline or are now looking at how best to deal with the backlog that has occurred in other areas as a result of the crisis and the recovery period that will now follow.
All parties would generally agree that cooperation is required between the parties within clinical negligence claims and in an effort to respond to the current difficulties a protocol has been introduced which sets out a number of areas which can be considered further within the scheme and outlines how practitioners may deal with the challenges faced.
Parties will be required to agree to enter into the scheme, which aims to reduce the risk of incurring costs spent on issuing proceedings, applications to extend time and applications to stay proceedings, where the parties are able to liaise and address these issues without recourse in the first instance to the Court. Indeed it will be noted that referral to the court should only occur to demonstrate a matter of fact.
The protocol will come into effect immediately and can remain in place throughout the pandemic and subsequent recovery. The protocol will be reviewed every 8 weeks and, once working within the protocol, a party will be required to give 4 weeks’ notice should they wish to terminate their participation.
Summary of the protocol and application of the same
Below is a summary of the main aspects of the protocol and the areas of a clinical negligence claim that can be regulated within such claims with the participation of the parties involved. A full review of the protocol is advised for all practitioners looking to engage in the same as the situation continues into the Autumn:
1. Limitation and Extensions of Time:
- Limitation moratoriums will be agreed until 3 months after the protocol expires. This will also include cases where primary limitation has expired but the parties have agreed that no limitation defence will be raised.
- Adjournment of inquest hearings will be put in place in order to adhere to social distancing regulations. The limitation period is to be suspended on these cases to accommodate this.
- Limitation extensions/moratoriums are to be agreed only where written notification has been provided prior to the expiry of the limitation period – it is therefore essential to ensure this is done to avoid falling foul of the rule here.
- Extensions of time and reasonable requests to extend deadlines to comply with Court directions or pre-action protocols will not be opposed save in exceptional circumstances. Extensions of time of up to 56 days can be agreed between the parties. A request over and above the 56 day limit will need to be evidenced to substantiate the reason for that request.
2. Telephone calls/emails
- given there have been widespread difficulties, which continue to occur, in practitioners accessing hard copy post on a daily basis, communication will be made via telephone and/or email wherever possible. Firms and organisations will be responsible for ensuring staff have access to telephones while working from home and
efforts should be made where possible to deal with matters by way of reciprocal encrypted email.
- Communication sent to NHS Resolution is to be provided by email only, with letters of claim to be sent to
3. Service by email including new proceedings
- it will be accepted by the parties involved that service of Court documents, including new proceedings will be made by email. Where large numbers of pages are to be sent, the documents will be broken down into numerous emails to ensure all are received safely.
- it will be imperative to ensure correct email contact details are available for the parties, as the email address of the conducting fee earner on correspondence shall be deemed the suitable address for service of documents and proceedings.
4. Medical examinations of clients for Condition and Prognosis reports
- in view of the difficulties with in-person examinations the parties should look to promote the use of virtual examinations where possible and there should be no attempts made to pressure a Claimant to attend an in person appointment where this is not appropriate, for example by reducing an extension of time to serve the reports.
- Co-operation will be key here to ensure continued progression of the claim in all the circumstances.
5. Exchange of evidence
- in line with the previous guidance regarding service by email, the parties should wherever possible agree to the
exchange of witness evidence and expert evidence by encrypted email.
6. Interim payments
- the making of interim payments on account of both damages and costs will be encouraged and the parties will be expected to take a reasonable approach here. It is recognised that in the current climate such payments will likely be of significant importance and all such requests should be responded to within 21 days. This is particularly welcome news in the current climate where cash flow is key to sustaining the health of business.
7. Settlement Meetings & Mediations
- where ADR is encouraged by the Courts in any event, there is a keen desire to ensure such settlement discussions and mediation meetings do not cease to occur in the current situation. In view of this the protocol outlines that consideration should be given, wherever possible, to all settlement discussions
whether pre- or post-issue of proceedings taking place via secure electronic means
(e.g. video conferencing) to avoid unnecessary delay in matters.
8. BACS payments
- this perhaps again reflects the use of electronic communication which is highlighted throughout the protocol – to enable a more efficient and effective transfer of funds for damages and costs firms
should use BACS payments wherever possible.
9. Cost Budgeting
- again this requires a reasonable approach to be taken by all parties involved to ensure that benefit can be taken from the notes made, namely that the protocol recommends early exchange of cost budgets wherever possible to enable the parties to consider whether the budgeting aspect of the CCMC hearing should be adjourned or where budgets can be agreed.
10. Hearings including adjournments
- another area requiring full participation and a reasonable approach to be taken by both parties, is encouragement to seek to agree Orders and directions wherever possible to avoid the need for hearings. Adjournments of hearings may be required due to non-availability on some occasions, however there is a consensus that these should be kept to a minimum where at all possible.
- Guidance on the wider use of remote hearings is available, where the Courts seek to conduct these by telephone or Skype.
The key objectives of the introduction of this protocol are clear – to ensure the continued progression of clinical negligence matters and assist where possible in minimising unnecessary costs. There is a distinct emphasis on co-operation throughout the claims process along with encouragement of more technological innovation to enable medical examinations and settlement meetings to take place, and to enable simple service by email to keep matters moving.
In this time of uncertainty, it is useful to note the clear encouragement for interim payments for both damages and costs to be made and this will undoubtedly be one element to reference on many matters as cases continue.