Updated Pre-action Protocol for the resolution of clinical disputes
Published 6 April 2015
We understand that the Master of the Rolls has formally signed off an updated version of the Protocol that has come into immediate effect.
A draft copy of the new protocol can be found here. It should be published on the UK Government website soon.
While reiterating changes that came into effect in 2010 (most notably extending the time period for service of Letters of Response from 3 to 4 months after receipt of the Letter of Claim), it also makes a number of key changes that you need to be aware of:
1. Litigants in Person
A copy of the protocol should be sent to anyone acting as a Litigant in Person at the earliest possible opportunity (para 1.8).
2. Early engagement of indemnifier
Under the specific objectives as set out at para 2.2, healthcare providers are encouraged to involve NHS Resolution (formerly the NHS Litigation Authority) or their defence organisation/insurer as appropriate. This is important given the provision for claimants to serve a Letter of Notification (see below).
3. Early encouragement of resolution/narrowing of issues
Also under para 2.2, healthcare providers are encouraged to identify cases where an investigation is required and to carry out that investigation promptly (in light of the introduction of the statutory Duty of Candour it may well be that preliminary investigations have already occurred).
4. Letters of Notification
While not compulsory, claimants may well send an initial Letter of Notification (see para 3.10). The purpose of this letter is to advise the Healthcare provider that a Letter of Claim is likely to be sent because it is believed that there is a case for the healthcare provider to answer.
This is a key change in the protocol and is designed to prompt early investigation and encourage early admissions where appropriate.
The claimant should send the LoN not only to the Healthcare provider but also to NHS Resolution, or where appropriate and known, the relevant MDO or indemnity provider.
Healthcare providers are requested, on receipt of the LoN (at para 3.12.1) to acknowledge receipt within 14 days and identify to whom any subsequent Letter of Claim should be sent, to consider what investigations need to be commenced and what information could be passed to the claimant, which might help narrow the issues in dispute (this could potentially include SUI reports or comment on any misunderstanding by the claimant that arises in the LoN).
It should also provide the opportunity to ask the claimant whether or not independent expert evidence has been obtained and in what specialty and from whom. An invitation should be extended to disclose any report/s obtained, even if on a without prejudice basis.
NHS Resolution or other relevant MDO/insurer should be sent a copy of the LoN.
At para 3.12.2, the protocol states that a Court may question any request by a defendant for an extension of time limits (for example when preparing a Defence) if the LoN did not prompt an initial investigation. Therefore, it is important that any LoN is acted upon once received.
5. Letters of Claim and Response
The same timeframes for service of the response apply (i.e. within 4 months of receipt of the Letter of Claim).
Para 3.16 lists the items a Letter of Claim should contain, and any Letter of Claim that is received that does not contain this information should be met with an acknowledgment letter from you asking the claimant to comply with the protocol and provide this additional information.
Claimants are required to focus on the likely value of their case early on and para 3.18 indicates that sufficient information must be given to enable the defendant to focus investigations and to put an initial valuation on the claim. If the LoC does not, then clarification should be sought in the acknowledgment letter.
6. Proceedings should not be issued until four months from service of the Letter of Claim.
If this is not possible because of limitation issues, then the parties should agree a stay so that the protocol can be complied with.
7. Early offer to settle
If the claimant makes an early offer to settle, then this should be accompanied by a medical report and copies of documents that support any claim for special damages. An exception to this would be if the injury had fully resolved in what would be a lower value case.
8. Letter of Response
This should continue to be served within 4 months of receipt of the Letter of Claim. If admissions are made, it should be stated whether these are intended to be binding in any subsequent proceedings.
Any dispute in the facts as alleged by the claimant should be set out.
It should be indicated whether the LoR has been written with the benefit of independent expert evidence and if so, in what specialty.
Where appropriate, it should also indicate whether there are any other potential defendants.
Importantly, where an extension of time for service of the Letter of Response is requested, a request should be made as soon as the defendant becomes aware of the need for one. The reason/s for requiring an extension needs to be set out. Claimants are requested to adopt "a reasonable approach to any request for an extension of time" for service of the Letter of Response.
If liability is repudiated then both parties are asked to review their positions before proceedings are issued. They should seek to agree a chronology of events and identify the issues/facts that remain in dispute. Agreement on necessary procedural directions for efficient case management should also be considered.
The aim of the revised Protocol is to encourage even greater co-operation at an early stage, promote early and effective investigation of the issues in dispute and to seek resolution before costly court proceedings are commenced.