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The Rapid Growth of APPs and Burgeoning Risk for MPL

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Inside Medical Liability

Third Quarter 2022

 

 

INTERNATIONAL PERSPECTIVE

Pre-action Protocols for Clinical Negligence Actions: An All-Ireland Comparison

Historically across Ireland, there was, generally speaking, little or no legal framework in place to govern the conduct of parties to clinical negligence litigation prior to the initiation of formal legal proceedings.

By Roger McMillan, Laura McKee, and Sam Francey

 

Over the last 20 or so years, the adoption and implementation of Pre-Action Protocols (PAP) and Judicial Practice Directions (PD) in U.K. jurisdictions has become a means by which the courts seek to ensure ‘equality of arms,’ as well as seeking to expedite the efficient resolution of claims. (Equality of arms is the concept that requires the opportunities afforded to both parties in litigation to be distributed fairly.)

These PAP and PD advocate early cross-party disclosure and the prompt completion of liability and quantum investigations. (Quantum refers to “the amount of damages that are awarded to a successful party in a claim,” according to Thomson Reuters Practical Law U.K.1 ) The primary focus is to narrow the specific issues and disputes between the parties to the litigation before, or shortly after, legal proceedings begin.

While the operation of PAPs has been commonplace in other jurisdictions—the have been in place in England and Wales since the late 1990s—their implementation and enforcement, particularly for clinical negligence actions, in Northern Ireland has been somewhat slower. Further, they have not yet materialized in the Republic of Ireland.

This article sets out a snapshot comparison of the procedural differences between these two neighboring jurisdictions, as well as an overview of what litigants on both sides may expect to see in the near future.

Northern Ireland

A PAP for dealing with clinical negligence actions in Northern Ireland was first introduced in 2009 and revised a short time later in 2012. There was a recognition at that time, by both the legal profession and judiciary, of a need for this complex, specialized, and often high-value area of legal practice to be approached in a process- and procedure-based manner. A PAP offered the potential to streamline the conduct of parties prior to the issuing of legal proceedings. The core purpose for the PAP was to ensure adherence to the Northern Irish Court’s Overriding Objective—put simply, to ensure the equal footing of the parties, reduce costs, and allocate limited court resources appropriately.2

Over the years, and due to the absence of any real consequence for noncompliance— that is, primarily, cost consequences—the requirements of the PAP were often ignored by practitioners. However, in recent years, judicial frustration at this non-compliance has ensured a renewed focus on adherence to the PAP. On Oct. 1, 2021, a revised Protocol for Clinical Negligence in the High Court of Northern Ireland was given effect by the Lady Chief Justice of Northern Ireland, Dame Siobhan Keegan LCJ.3This protocol was drafted by board members of the Law Society’s Clinical Negligence Practitioners’ Group, made up of lawyers actively engaged in the field of clinical negligence. This group received assistance from Mr. Justice McAlinden, the “resident” Clinical Negligence High Court Judge in Northern Ireland, and members of the Bar.

The introduction of the new iteration of the Protocol for Clinical Negligence claims continued a move away from the “ambush” approach to litigation (that was common case in the Northern Irish Courts for many years), to a more open, “cards-on-the-table” approach. A few key features of the revised protocol are worth highlighting as those, we anticipate, may be crucial to achieving earlier resolution of claims in the future.

Pre-proceedings conduct: Before any legal proceeding begins, the plaintiff must send a ‘Letter of Claim’ to the proposed defendant and defendant’s representative as soon as is practicable. This should occur after consideration of the medical notes and (“normally”) expert evidence. This Letter of Claim, which should be based on expert evidence, must provide sufficient information as currently held by the plaintiff to enable the proposed defendant to commence investigations.

The proposed defendant must acknowledge the Letter of Claim within 14 days. Thereafter, the proposed defendant has a period of four months, which is subject to extension by agreement, to investigate and respond to the Letter of Claim, by way of a ‘Letter of Response’; and there are possible costs/procedural penalties for non-compliance with these Pre-Action steps.

Standstill agreements: A new feature introduced in the revised PAP, this is, in effect, an agreement to suspend or extend a statutory limitation period, which in Northern Ireland is three years from the date upon which the negligence arose, or three years from the plaintiff’s “date of knowledge” of the alleged negligence. Such an agreement seeks to avoid protective proceedings being issued unnecessarily and may save costs. The main consideration for a plaintiff clinical negligence practitioner should be whether or not he or she has enough information to assess primary liability. If the answer to this is “no,” a standstill agreement ought to be considered to allow them sufficient time to finalise their necessary liability investigations so that they may take a view on the overall merits of their client’s claim.

Alternative dispute resolution: Parties are encouraged to consider alternative dispute resolution, a voluntary, confidential, and impartial means of resolving the issues. Should legal proceedings be issued, a court may require evidence from either party as to whether such methods had been considered.

Statistics released by the Department of Health and Social Care in Northern Ireland, whilst providing global figures for settlement numbers, do not set out the stage of legal proceedings at which resolution was achieved. The latest figures available in 2021 suggest that there has been an overall increase (2.03%) in the total number of claims settled, from 246 in 2017, to 251 in 2021.4 It remains to be seen what impact this revised 2021 Protocol will have on the number and timing of the resolution of claims in Northern Ireland, although there is optimism that there will be a noticeable increase in pre-proceedings settlements.

Official figures from the Department of Health and Social Care for 2022, following the implementation of the Protocol, are not expected until early 2023. Even then, a more accurate picture of the impact of the revised Protocol will likely not be fully ascertainable/appreciated until the 2023 figures are released in 2024, after a full year of being in force.

That being said, the introduction of the revised Protocol in Northern Ireland has been welcomed by all practitioners in this area as well as the judiciary and has been designed to promote a collaborative approach between the parties to dealing with claims in this specialized and often complex field.

Republic of Ireland

The legal system in the Republic of Ireland has been slower than its northern counterpart to adopt and implement a PAP for clinical negligence claims, which has been a source of frustration for the legal profession there.

Based on figures reported in 2021, in the Republic of Ireland, 59.3% of clinical and non-clinical claims were settled prior to formal legal proceedings being issued, 39.8% were settled post-proceedings but prior to trial, and 0.9% resolved at Trial.5 By way of comparison, for the same period in England and Wales, where PAPs have been in force for over 20 years, 74.7% (rising to 77% in 21/22) of clinical and non-clinical claims were settled prior to formal legal proceedings being issued, 25% were settled post-proceedings but prior to trial, and only 0.3% resolved at trial.6 What these figures may illustrate is the greater scope for early resolution of clinical negligence claims if a PAP, or clinical negligence specific protocol, is implemented, enforced, and adhered to in the Republic of Ireland.

In the absence of any protocol, other factors can raise their heads to aggravate the delay of resolving clinical negligence claims. Specifically, legislation stipulates a relatively short primary limitation period in Ireland; that is within two years of the date of injury/requisite knowledge accrued. In addition, there are tight procedural timeframes to which parties must abide with growing judicial/costs pressure against defaulting parties.

Experience suggests that the main roadblocks in progressing to early resolution are caused by several factors, including the inability or unwillingness to fully disclose the basis of the claim and the delay in disclosure of medical records. Specifically, often there occurs an inability or unwillingness of parties to detail and respond to the specific allegations of negligence due to tight procedural/limitation timeframes resulting in incomplete/premature pleadings being delivered, which is of no benefit to any party, or, indeed, the court. Delays in disclosure of medical records can happen either from the source of the records or the parties themselves.

Both of these issues could be dealt with at an earlier stage with the implementation of a clinical negligence PAP.

The recommendation for implementing a PAP in the Republic of Ireland can be traced back to March 2012, when the Working Group on Medical Negligence and Periodic Payments, which was established in 2010, delivered their “Module 2” report. In this report the Group recommended the implementation of a PAP and, indeed, appended a draft of such a protocol for clinical negligence actions.

Some three years later, the Legal Services Regulation Act 2015 was enacted.7 This is a significant piece of legislation that governs the regulation of legal service provision in the Republic of Ireland. Somewhat hidden in the final part of this voluminous statute, are sections 219 – 221, which contain the legislative framework for the extension of statutory limitation periods for clinical negligence claims from two years to three years, and, most importantly, the implementing of a PAP in clinical negligence claims.8 Despite this legislation existing for seven years, these particular sections have yet to be enacted by the Minister for Justice and Equality.

PAPs were given a renewed spotlight following the publication of the anticipated Administration of Civil Justice Review Report in October 2020, which was penned by a Review Group chaired by the former President of the High Court, Mr. Justice Peter Kelly.9 Amongst the 95 recommended reforms to civil justice in the Republic of Ireland, the Review Group recommended that “early attention be given to the introduction of the Ministerial regulations prescribing the pre-action protocol (“PAP”) in clinical negligence cases,” and, indeed, recommended their extension into other categories of High Court litigation.10

More than a year-and-a-half after the Review Group report was published, on May 27, 2022, the Republic of Ireland Minister for Justice and Equality issued an implementation plan on the civil justice reforms recommended by the Review Group.11 The Minister has set a target to enact the necessary legislation required to bring PAPs into force within the first 6 months of 2023, and the appropriate court rules to be drafted and approved by the end of 2023.

Although we have yet to see any formal draft of PAPs to take a view on the overall scheme, there is reason for optimism for these reforms to finally come to fruition in Ireland over the next 12 to 18 months.

Pre-action Protocols Benefit Parties in MPL Claims

Whilst the underlying principles of PAPs, namely, proportionality, openness, transparency, fairness, collaboration, and ensuring that parties are on an equal footing should reflect how parties involved in a clinical negligence claim already conduct their litigation, it seems clear that in jurisdictions where the introduction of PAPs have been implemented and robustly enforced, this has led to improved litigation behaviours with a consequent favourable uptick in the timely resolution of claims, to the benefit of patients and healthcare professionals (and their indemnifiers).

References

1. “Quantum,” Thomson Reuters Practical Law UK, 2022, https://uk.practicallaw.thomsonreuters.com/w-006-5766?transitionType= Default&contextData=(sc.Default)&firstPage=true
2. The Rules of the Supreme Court (Northern Ireland), Statutory Rules of Northern Ireland, 1980, https://www.legislation.gov.uk/nisr/1980/346/pdfs/nisr_ 19800346_en.pdf
3. “Revised Protocol for Clinical Negligence,” Carson-McDowell, Oct. 4, 2021, https://www.carson-mcdowell.com/news-and-events/revised-protocol-for-clinicalnegligence
4. “Clinical/Social Care Negligence Cases in Northern Ireland (2020/21,”U.K. Information Analysis Directorate, Feb. 24, 2022, https://www.health-ni.gov.uk/ sites/default/files/publications/health/cscnc-ni-20-21.pdf
5. NTMA Annual Report 2021, Republic of Ireland National Treasury Management Agency, 2022, https://www.ntma.ie/annualreport2021/documents/NTMA-AnnualReport-2021.pdf
6. “Annual Report and accounts 2020/21, U.K. National Health Service Resolution, July 15, 2021, https://resolution.nhs.uk/wp-content/uploads/2021/07/Annual-reportand-accounts-2020-2021-WEB-1.pdf
7. “Legal Services Regulation Act,” Republic of Ireland, 2015, https://www.gov.ie/ en/publication/3a414-legal-services-regulation-act-2015/#
8. “Legal Services Regulation Act,” Republic of Ireland, 2015, https://www.gov.ie/ en/publication/3a414-legal-services-regulation-act-2015/#
9. “Review of the Administration of Civil Justice Report, Republic of Ireland, Oct. 2020, https://www.justice.ie/en/JELR/Review_of_the_Administration_of_ Civil_Justice__Review_Group_Report.pdf/Files/Review_of_the_Administration_of _Civil_Justice_-_Review_Group_Report.pdf
10. “Review of the Administration of Civil Justice Report, Republic of Ireland, Oct. 2020, https://www.justice.ie/en/JELR/Review_of_the_Administration_of_ Civil_Justice__Review_Group_Report.pdf/Files/Review_of_the_Administration_of _Civil_Justice_-_Review_Group_Report.pdf
11. “Implementation Plan on Civil Justice Efficiencies and Reform Measures, Republic of Ireland, May 27, 2022, https://www.gov.ie/en/publication/cb6f0-implementation-plan-on-civil-efficiencies-and-reform-measures/


 
Roger McMillan
is Managing Partner at Carson McDowell LLP.

 
Laura McKee
is an Associate with Carson McDowell LLP.

 
Sam Francey
is an Associate at Carson McDowell LLP.