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K1.3. Implemented by the CPR
| 262. | Lord Woolf's recommendations are implemented by certain provisions of the CPR (Note 201) and a Practice Direction on pre-action protocols (Note 202) setting out the principles upon which the protocols operate and listing in its Schedule, those protocols which have been approved. The first two protocols, approved (Note 203) at the time the CPR came into effect, apply to personal injury and clinical negligence litigation. Since then, (Note 204) three further protocols, dealing with defamation, construction and engineering disputes and professional negligence, have been approved. (Note 205) Further protocols are subject to consultation and development. |
| (a) | Operation of pre-action protocol illustrated |
| 263. | The Clinical Negligence Protocol can be taken as an example of how pre-action protocols are intended to work. It was developed by a multi-disciplinary Forum to deal with disputes involving healthcare and medical treatment. |
| 264. | It was recognized that a climate of mistrust often impedes the proper resolution of such disputes. |
| 264.1 | The patient may fail to raise complaints as early as possible and, when making a claim, may "play his cards close to his chest" in the belief that this is tactically desirable, making it hard for the defendant to respond to or assess the claim with a view to its resolution. |
| 264.2 | Conversely, healthcare givers may not be forthcoming when threatened with a claim, and may fail to give needed information and explanations to allow the plaintiff's advisers to assess the claim. |
| 264.3 | Such attitudes obviously obstruct early settlement and encourage litigation. |
| 265. | This protocol therefore seeks to :- |
| * | encourage greater openness between the parties; | |
| * | encourage parties to find the most appropriate way of resolving the particular dispute; | |
| * | reduce delay and costs; | |
| * | reduce the need for litigation. |
| 266. | It does so by identifying the steps that should be taken before starting proceedings, setting a timetable for such steps and setting standards (with standard forms and precedents) as to the types of information, documents and medical records that should be made available by each side. |
| 266.1 | It is envisaged, for instance, that a patient who complains of an adverse outcome in his treatment, will wish to obtain the relevant health records. The Protocol requires him to be as specific as possible to enable the records to be retrieved and to alert the healthcare provider of the possible adverse outcome. A standard of 40 days is set as the time for reply. |
| 266.2 | A letter of claim by the patient is then envisaged, the Protocol prescribing that it should state the facts and identify the alleged adverse outcome with the main allegations of negligence. It should also describe the patient's injuries, condition, prognosis and alleged financial loss. Health records should be enclosed or referred to. |
| 266.3 | The recipient of the complaint is required to acknowledge receipt within 14 days, but then the Protocol prescribes a 3 month hiatus after the claim letter before starting any proceedings. This is to give the potential defendant time to retrieve his own records, to seek advice and to respond, possibly disposing of the case without proceedings. |
| 266.4 | Standards as to the contents of the response are also laid down. Thus, if the claim or part of the claim is admitted the healthcare provider is to say so in clear terms. If it is denied, specific comments on the allegations of negligence and the opposing version of any disputed facts should be given, with any additional documents relied upon. |
| 266.5 | By providing a known timetable for responses, the premature launching of proceedings may be avoided. The defendant's lack of response during the period that he is allowed for assessing the claim is not mistaken for a refusal to negotiate. |
| (b) | Non-compliance and the CPR |
| 267. | Where non-compliance with a protocol is relevant, the court can take this into account in deciding what case management directions to give, including a direction requiring the non-complying party to pay money into court. (Note 206) More importantly, in deciding on costs orders, the court is required to have regard to all the circumstances, including the conduct of all the parties, which specifically includes conduct "before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol." (Note 207) |
| 268. | The Practice Direction makes it clear that in exercising these powers in relation to non-compliance with pre-action protocols, orders having serious financial consequences may be made, including orders regarding interest on the sums claimed. Paragraph 2.3 of the Practice Direction states :- |
| "If, in the opinion of the court, non-compliance has led to the commencement of proceedings which might otherwise not have needed to be commenced, or has led to costs being incurred in the proceedings that might otherwise not have been incurred, the orders the court may make include : | |||
| 1) | an order that the party at fault pay the costs of the proceedings, or part of those costs, of the other party or parties; | ||
| 2) | an order that the party at fault pay those costs on an indemnity basis; | ||
| 3) | if the party at fault is a claimant in whose favour an order for the payment of damages or some specified sum is subsequently made, an order depriving that party of interest on such sum and in respect of such period as may be specified, and/or awarding interest at a lower rate than that at which interest would otherwise have been awarded; | ||
| 4) | if the party at fault is a defendant and an order for the payment of damages or some specified sum is subsequently made in favour of the claimant, an order awarding interest on such sum and in respect of such period as may be specified at a higher rate, not exceeding 10% above base rate (cf. CPR 36.21(2)), than the rate at which interest would otherwise have been awarded." | ||
| 269. | Since the preparation of protocols covering particular fields of litigation takes time (being based on consensus and acceptance among interested parties in that field), the Practice Direction on protocols provides (Note 208) that in cases not covered by an approved protocol :- |
| "...... the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a), (b) and (c), to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings." |
Notes
| 201 | CPR 3.1(4), 3.1(5), 3.9(e), 44.3(5), 48.1 and 48.2. <back> |
| 202 | White Book, C1-001; or on the LCD's Website. <back> |
| 203 | Entering into force on 26 April 1999. <back> |
| 204 | As from 2 October 2000. <back> |
| 205 | All the pre-action protocols may be read or downloaded from the LCD's Website. <back> |
| 206 | CPR 3.1(4) and (5). <back> |
| 207 | CPR 44.3(4) and (5). <back> |
| 208 | At ยง4 <back> |
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