What is the Pre-Action Protocol: Clinical Negligence?

The pre- action protocol for the resolution of clinical disputes was introduced by the Clinical Disputes Forum to settle medical negligence claims whilst mitigating the need to go to Court. This is an official procedure which was set up with the aim to save time, reduce legal costs and reduce the amount of stress experienced by the Claimant.

The pre action protocol (Clinical Negligence) provides a framework, intended as a “code of good practice” for handling clinical negligence claims, setting out steps which should be taken by the parties before proceeding to Court.  Failure to adhere to the correct protocols, and premature issuance of proceedings leads to unnecessary levels of increased costs being incurred, and ultimately could lead to costs sanctions (for either Paying or Receiving Parties) on detailed assessment.

The Pre Action Protocol Clinical Negligence Procedure

Letter of Claim: Under the protocol, the Claimant or Claimant Solicitors should initiate the case by sending a letter of claim to the Defendant (usually the NHS Litigation Authority, or private medical company) to notify them of the claim being brought against them. The letter of claim should outline the main allegations of negligence, summarise the facts of the case, detail the Claimant’s injuries, prognosis, and details of any financial losses suffered. There should be sufficient information within the letter of claim for the Defendant to fully investigate the matter.  Whilst expert/medical evidence is not mandatory at this stage, it is of course beneficial to have supportive evidence at the time of writing the letter of claim to encourage settlement to be reached.

Upon receipt of the letter of claim, the Defendant should acknowledge the letter of claim within 14 days. They should then send a letter of response following a four month investigation period. The letter of response should confirm whether they admit or deny liability for the claim.  It is common for the Defendant to seek an extension to the investigation period, given the resources required to assess these cases, as well as the generally complexities involved in medical negligence disputes.

Medical Records: At the start of the case, the Claimant solicitors should request their medical records from the NHS (and other medical providers) using a standard form. The records should be disclosed within 40 days.  It is an imperative part of the Protocol that such medical records are maintained in a sorted and indexed fashion, as the contents of these documents will be imperative to proving a positive claim.

Expert Evidence: Expert evidence is often required in clinical negligence claims under the Protocol. Evidence may be required to prove breach of duty, causation and/or the Claimant’s prognosis for the injury. The Protocol does not impose any guidance or restrictions on the type of evidence that may be required as clinical negligence claims tend to be complex and highly varied in nature, and no single expert can opine on all types of cases.  Costs of expert evidence in medical negligence disputes can be extremely high, and it is for this reason that the costs of breach of duty and causation evidence can still be covered by way of ATE insurance, despite the introduction of LASPO 2012.

Alternative Dispute Resolution (ADR): The parties should attempt to negotiate the claim in order to agree to an offer to settle before proceeding to initiate Court action. ADR can include negotiation, mediation or early neutral evaluation.  With the introduction of NHS Resolution in 2017, there is a more keen focus on matters reaching settlement through ADR, and if a positive clinical negligence case can be proven it is often the case now that the Defendant will wish to resolve matters by way of a Joint Settlement Meeting or mediation.

Costs Consequences for Non-Adherence to the Protocol

If the Pre Action Protocol Clinical Negligence procedure is not adhered to, the Court may impose costs sanctions.  These may take the form of disallowance of any costs for premature issuance of proceedings, when it is clear no efforts were made to settle the case pre-issue despite investigations remaining ongoing.  Furthermore, if medical records are not disclosed within the 40 day period as outlined in the protocol, the Court has discretion to make an award for costs against the Defendant for not complying with this procedure.

Although ADR is not mandatory, the Court is not likely to look favourably on a party who does not agree to use of these methods and costs sanctions may be applied if ADR is not considered before proceeding to Court.  Ultimately failure to engage in ADR is not only a breach of the Protocol, but also of the overriding objective, and unnecessarily increases the use of Court’s resources as well as escalating costs.

It is therefore essential that those who are bringing a clinical negligence claim understand how the Protocol works to ensure that legal costs are reduced, delays are avoided and Court proceedings are only issued as a last resort.

Recovering Legal Costs under the Pre-Action Protocol: Clinical Negligence

As clinical negligence cases can be highly complex, and pre-issue investigations are intensive, the legal costs of clinical negligence cases can be significant, even if only pre-issue disputes.

Qualified One Way Costs Shifting (QOCS) applies to all pre-action protocol clinical negligence cases, which means that a Claimant will not be responsible for paying the Defendant’s costs if their case is unsuccessful. Some exceptions to this rule may apply in exceptional circumstances, such as cases involving fundamental dishonesty.

Most Solicitors take on these types of claims on a no win, no fee basis, meaning that some of their costs for providing legal advice and for working on the case are recovered through use of a success fee. If the case is unsuccessful, disbursements for expert evidence can usually be recovered from an ATE premium if a policy has been taken out.  In cases involving birthing injury claims, Legal Aid may also be available to fund the investigations as to any alleged negligence.  Such cases can involve devastating circumstances for a child and involve life-long implications to the Claimant’s health, and damages in such cases can extend into the hundreds or even millions of pounds, in order to provide the life-long care an individual may require.

On success in clinical negligence cases, the general rule of thumb is that the NHS (or private trust) will be responsible for paying the costs of a successful Claimant to a clinical negligence case.  Costs of these claims are covered by the Clinical Negligence Scheme for Trusts, operated by the NHS Resolution, into which NHS organisations pay voluntary contributions.

Standard costs will usually apply for these types of claims, and therefore a Bill of Costs will be required to be drafted and served by the successful Claimant upon the Defendant. The process of detailed assessment can then begin and both parties should negotiate costs when possible, and if any significant areas of contention remain, utilise Points of Dispute and Points of Reply to narrow the issues so that a settlement as to legal costs can be reached.

Costs claimed within the Bill must be reasonable and proportionate (unless indemnity costs apply) and alongside profit costs, may include items such as Court and Counsel fees, expert disbursements and mediation fees.

As proportionality is a significant consideration taken by Paying Parties and the Courts, as well as forming part of the overriding objective, we would highly advise that you utilise a Clinical Negligence costs specialist to ensure you achieve the maximum recovery on detailed assessment.

How can ARC Costs Assist?

Legal costs has become an increasingly complex area of law, particularly when significant sums are involved as can arise in clinical negligence disputes.  We would always recommend input from a Costs Draftsman or Costs Lawyer is provided at the very outset of a claim under the pre action protocol for clinical negligence, to ensure that the retainer and hourly rates are in good order, and throughout litigation, to ensure costs budgeting is correctly forecasted.

Further input will be necessary throughout the claim process, particularly in preparing and negotiating your Costs Budget, which is critical to ensure maximum recovery on assessment. On conclusion, following preparation of the Bill of Costs we will assist in negotiating recovery of your outstanding fees. Managing your Costs Budget effectively is important, as you can recover up to 100% of all approved budgeted costs incurred.

To discuss your costs claim further, please do not hesitate to contact us on 01204 397302 or email one of the team using our email address: info@arccosts.co.uk. Alternatively, you may complete our online enquiry form and we will be in touch to discuss your query further on the same day.

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