A well run clinical negligence action can demonstrate the CPR working to best effect in making litigation a last resort. In claims which stand or fall by expert opinion, early exchange of statements is vital in identifying the strength of a case before large resources are committed to it. For an area of litigation where pursuing a matter to trial is the exception, a mechanism for making meaningful pre-action offers (ie those with cost consequences) provides a driver for the early compromise of a claim.

 

The essence of the rules and guidance on pre-action conduct is that Parties should, before proceedings are commenced:

 

i)                    disclose sufficient information to inform the other side of their initial position and allow for an educated assessment as to prospects of settlement or progression of the claim

ii)                  attempt to compromise the claim without the need to issue proceedings.

 

(Practice Direction – Pre-Action Conduct, 6.1)

 

The current Pre-Action Protocol for the Resolution of Clinical Disputes (‘the protocol’) describes in some detail how openness in the face of clinical errors, good practice commitments, and the right sequence of pre-litigation steps can help achieve those aims.

 

But the current protocol was introduced some time ago (26^th April 1999) and was only the first attempt to set such rules for these cases in the post-Woolf era. In responding to clinical negligence judges’ and lawyers’ experience over the last decade or so, the Clinical Disputes Forum is now proposing changes to the protocol which are hoped will further streamline the early days of a claim.

 

Key to the proposals is the ‘Letter of Notification’. This is to be drafted after receipt of the medical records but before a Letter of Claim. Its purpose is to inform a Defendant and the NHSLA simultaneously that a claim is one in which a supportive opinion as to liability and causation has been received. With this information the Defendant can make an early decision to investigate. Presumably, in very straightforward cases an admission of some description would be forthcoming at this stage.

 

Alongside this proposed amendment to the protocol, the Head of Clinical Claims at the NHSLA recently requested that Letters of Claim be copied to the Litigation Authority at the same time they are sent to the Defendant member/PCT/SHA. Most claimant practitioners will have experienced a long wait for Letters of Response on some files, and directly involving the NHSLA in this way should cut the times Claimants are currently waiting for a response.

 

Significantly, at a time when everyone is being asked to help reduce the burden on central funds it might be hoped that Letters of Notification and the direct notification of claims will save money for the NHSLA. The more easily Defendants are able to distinguish those cases where records have been requested but no action taken, from those claims that warrant immediate investigation or settlement, the better for everyone. Money will be saved, and less time spent on obviously meritorious and obviously misconceived claims – real ‘cards on the table’ stuff.