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Changing behaviours will encourage resolution

Following publication of Lord Justice Jackson’s costs review, Claire Fazan gives her take on a possible, albeit radical, future approach to clinical negligence litigation

6 September 2017

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Those who have dealt with clinical negligence claims for decades have seen the same mistakes made time and time again. What is needed is not just an approach to the resolution of claims that makes the process quicker and less costly, but one which provides information to help prevent future incidents occurring.

For too long discussion about litigation reform has focused on costs, despite it being process and behaviour that ultimately drive costs. Following the publication of Lord Justice Jackson’s review in July, we must now turn our focus to process, regardless of the potential value of the claim.

The current pre-action and post-issue procedures combine to cause delay and costs which could be avoided. Parts of the process work well. Others do not. The sorts of behaviours leading to unnecessary cost and delay identified in appendix 13 of Jackson LJ’s review are not uncommon. The system needs to be reformed whereby both parties must engage properly and early with what the disputed issues are and whether the case can be resolved.

A process which requires the claimant to prove liability inevitably requires significant costs to be incurred pre-action by the claimant. Significant costs would be saved were the burden of proof to be reversed such that the defendant had to prove that a notified injury, deterioration in condition, or death was not caused by failings in care. Such a radical change may not find favour, but reversing the burden of proof on causation, following an admission of breach of duty, would undoubtedly reduce the duration and cost of litigation.

The following could offer a template for encouraging earlier resolution at lower cost and with prevention of future occurrences in mind.

Pre-action

In the absence of an unequivocal admission of breach and causation in response to a complaint, the claimant will need to instruct experts to advise on quality of care, nature of condition, and cause of injury.

The claimant will require pre-action disclosure of relevant material. There should be an absolute requirement that the defendant produces any statements, transcripts of interviews, or minutes of meetings relating to any formal or informal internal investigation of care or of any complaint. It should also provide a list of its protocols and guidelines, so that the relevant ones can be identified and obtained, and a list of previous prevention of future incidents reports (see below).

Letter of claim Once the claimant has the evidential basis for pursuing a claim, the defendant should be put on notice with a brief summary of what will be alleged.

The claimant should then serve a detailed letter of claim. This should be served with:

  • Evidence of condition;

  • A list of anticipated heads of claim to provide an indication of likely value; and

  • A preliminary list of documents relating to liability.

 

The letter of claim should include a table of issues which the defendant will be expected to respond to as agreed or in issue. And the letter should also set out the specialities of experts required to determine liability issues and current condition and prognosis and why these are required.

Letter of response

  • The defendant must identify any documents in its possession of relevance to the issues in dispute not listed in the claimant’s preliminary list of documents and must provide copies of these with their response;

  • If the defendant intends to deny liability (whether in part or in full) it must serve the factual evidence upon which it will rely. Supplemental factual evidence will only be permitted after issue of proceedings in the event that new issues are pleaded that were not previously raised in the letter of claim and which will be determined on the basis of factual evidence;

  • Absent a full admission of liability, the defendant must identify in clear terms in tabular form what issues are in dispute and why. It should identify whether those issues are likely to be determined on the basis of factual or expert evidence; and

  • If the defendant takes issue with the expert specialities identified by the claimant as being necessary, it must identify why issue is taken and what expert evidence it considers necessary to determine those liability issues which remain in dispute.

 

This process will lengthen the four-month response time currently allowed by the Civil Procedure Rules for service of the letter of response. In practice, the difference will be marginal as currently defendants seek lengthy extensions of time to permit them to obtain expert evidence.

Admission

Where a full admission of liability is made, whether at the pre-action stage or later, the defendant must make an interim payment of damages equivalent to 75 per cent of the general damages (assessed on the basis of the judicial guidelines) within 28 days.

Within a further 28 days there should be a meeting of lawyers, the purpose of which will be to see if quantum can be resolved through alternative dispute resolution (ADR) immediately, and if not, lawyers should seek to agree what, if any, expert evidence will be required to quantify the claim and which experts should, or should not, be appointed on a joint basis.

The case should be issued within 28 days of the meeting and an application made for a court-imposed timetable for quantification.

Issue and service

If liability cannot be resolved and remains in dispute, in part or in full, the case should be issued and particulars of claim served. These should include the table of issues agreed and not agreed from the pre-action process.

The presumption in all cases should be that the case will proceed on a split basis with liability being determined as a preliminary issue.

The particulars should be accompanied by the claimant’s factual evidence and draft directions for all steps up to trial of liability.

Defence

The defence should identify the extent to which further issues can be agreed or new points raised in the particulars that are in dispute and on what basis. The defence should also be accompanied by agreed directions or, where not agreed, a draft and explanation for why different directions to those proposed by the claimant are required.

Case management

The case should be listed automatically for a case management conference for one month after service of the defence.

At the CMC the court will identify the trial window and give the further directions required, including dates for exchange of supplemental liability factual evidence (limited to newly pleaded issues not previously addressed in the pre-action process) and expert evidence.

In cases where an admission of breach of duty, but not causation, has been made, the court will confirm in the directions order that the burden of proof in relation to causation of injury is reversed.

ADR and experts

There will be an absolute requirement that the parties meet to see if the case can be resolved by ADR within three months of the defence being served and ahead of exchange of expert evidence. If it cannot be resolved at ADR, the meeting will identify the points remaining in dispute.

Following the exchange of expert evidence the parties will refine that list, which will form the basis for experts’ discussions. Expert discussion(s) will be within three months of exchange of expert reports.

Where issues remain in dispute after expert discussions, a further ADR will be arranged not later than six weeks before trial to see if the case is capable of resolution and, if not, to identify the issues to be determined at trial and the witnesses to give evidence in relation to those.

Prevention of future incidents

There should be a process similar to prevention of future death reports in inquests, whereby a trial judge who finds in favour of the claimant on liability can require a trust or private medical provider to report back within one month on what steps have been taken to prevent similar events happening in the future.

That document in anonymised form should then be one that must be listed on relevant documentation for disclosure as part of the pre-action process in other cases involving the individual hospital or provider. There should also be an equivalent process that a master can initiate where judgment is entered following an admission of liability.

QuantumA similar streamlined approach needs to be found for quantum, building on the process outlined above with consideration being given to fixing an ADR date for quantum after post-issue settlement or determination of liability at trial. The timescale for ADR will vary depending upon the type of claim and the nature of the losses consequent upon the negligently caused injury.

 

Claire Fazan is a partner in the clinical negligence team at Leigh Day

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Clinical negligence