CJC concludes review of pre-action protocols: implications for Clinical Disputes

On 15 November 2021, the UK's Civil Justice Council (CJC) concluded its comprehensive review of pre-action protocols (PAPs) with publication of the final report (phase two).

See CJC-Review-Phase-Two-Report-1.

This report follows the publication of the CJC's interim report in November 2021 and part one of its final report in August 2023. In the second (and final) phase report the CJC has set out its recommendations for reforms across various litigation-specific PAPs, including those for personal injury, disease, clinical negligence, construction, professional negligence and package travel.

The Pre-Action Protocol for Clinical Disputes recommendations

So, what are the specific changes proposed in respect of the PAP for clinical disputes?

Generally, the sub-committee confirmed that it “enthusiastically” endorsed the five general principles set out in the CJC’s Review of Pre-Action Protocols: Final Report Part 1, namely that:

• Starting Court proceedings should be a last resort;
• there must be an early exchange of relevant information;
• the parties should behave reasonably and proportionately;
• the parties must actively cooperate with each other to achieve the overriding objective; and
• the parties should take reasonable steps to try to resolve or narrow their dispute.

ADR

All Civil practitioners should be aware of the Churchill principle that has been introduced in the CPR since 01 October 2024 which allows the Court to order ADR in proceedings and to take any unreasonable refusal to engage in ADR into account when assessing costs. A key recommendation from the CJC report is that parties who engage in a formal ADR process at the pre-action stage should be exempt from any automatic requirement to do so after proceedings are issued. This should encourage earlier cooperation from parties although the ability to properly engage in ADR pre-proceedings will very much depend upon the information available to the parties (e.g. are the allegations properly set out, has appropriate expert evidence been obtained).

Specific recommendations

The specific recommendations for clinical disputes are as follows:

• Wording

The CJC felt that in both PAPs for personal injury and clinical disputes the language was overly “wordy” and core principles should be stated precisely and succinctly. From a practical perspective, it is hoped this will assist litigants in person and those less familiar with clinical claims to understand the process more clearly.

• Communication

It is also recommended that it is made clear that an apology should be substantive rather than a token gesture in order to be meaningful. Emphasis is also placed on the importance of communicating “lessons learned”, as appropriate, because of the value it brings to efforts to resolve claims, something which clinical negligence practitioners are familiar with given the Duty of Candour.

• Vulnerability

It is suggested that there should be the addition of a section to address vulnerability, specifically in respect of litigants in person.  Vulnerability issues should be identified using similar wording to that currently found in Directions Questionnaires, e.g. if you believe that you are vulnerable, explain what steps, support or adjustments you wish the other party to consider. Understandably, it will help practitioners if this is made clear from the offset.

• Disclosure

When outlining disclosure requests there should be a change of emphasis to mandate disclosure of Patient Safety Incident Response Framework and Health Services Safety Investigations Body Reports (including witness statements) and for Claimants to request any relevant coronial documents directly from the Coroner as an interested party.

Practically, many practitioners in clinical negligence cases disclose serious incident documents early on, although the change in emphasis will mean that the disclosure will be mandatory such that sanctions will apply if the PAP is not complied with. The recommendations with regards to the PAP for personal injury for example, state that restraint was urged from promoting “trial by correspondence” on why certain documents had not been disclosed.

Further review

It is recognised in the report that the PAP will require further review once the Department of Health and Social Care Low Value Clinical Disputes Protocol (claims £25,000 and under) goes live.

Summary

Overall, the CJC continues to emphasise that the PAPs are “designed to help people understand that most legal disputes do not require court adjudication for the dispute to be resolved satisfactorily.”

Most clinical negligence cases do in fact resolve without the need for Court adjudication. However, the encouragement of parties to engage more effectively in the pre-action stage to resolve cases without the need for litigation at all or at least facilitate narrower litigation focused on the real issues in dispute should be welcomed.

The important recommendation that parties who engage in formal ADR pre-action should be exempt from the automatic requirement to do so after proceedings are issued really does emphasise how important the pre-action stage of proceedings is although the ability to engage in effective ADR in the pre-action stage is very much dependent upon all parties ensuring that cases are dealt with in a way which allows for investigation/consideration and discussion of the issues in question.