Northern Ireland Partner, Victoria McLean, looks at how the updated Clinical Negligence Protocol has impacted medical negligence cases over the last couple of years.
Back in October 2021 an updated Clinical Negligence Protocol came into effect in Northern Ireland, revoking the previous 2012 Protocol and reflecting the evolution of medical negligence claims over the last decade.
The Protocol covers all claims falling within the remit of the High Court of Northern Ireland and introduced the following new procedures:
For the last couple of decades, there has been a limited legal framework governing the conduct of legal practitioners prior to the issuing of proceedings. Pre-Action Protocols have been introduced across a variety of practice areas as a means of advocating for inter-party disclosure and encouraging early completion of liability and quantum investigations.
A Pre-Action Clinical Negligence Protocol was first introduced in Northern Ireland in 2009 and revised shortly thereafter in 2012.
The central purpose of the Protocol was to encourage parties to adhere to the Northern Irish Court’s Overriding Objective – “to ensure the equal footing of the parties, reduce costs, and allocate limited court resources appropriately” - as enshrined in the Rules of the Supreme Court (Northern Ireland) Statutory Rules of Northern Ireland 1980.
It directs that:
The Pre-Action Protocol, on the whole, is a positive step in the right direction. However, due to the absence of any cost sanctions or consequences for non-compliance, the requirements are very often ignored. By way of contrast, in England and Wales, the courts are very tough on non-compliance for pre-action requirements. We hope to see a reform of the process in due course to encourage early disclosure and preparation of medical evidence.
The Clinical Negligence Protocol also introduced case management directions.
Under the Protocol, clinical negligence cases are now listed for review before Master 13 months after issue of Writ.
The Master will issue case management directions in order to progress the case. They will then direct further on issues pertaining to discovery and provision, which will be made for simultaneous exchange of liability evidence and sequential exchange of quantum evidence.
The Master will review the case up to three times to ensure both parties are ready. These three reviews will cover initial directions, active case management and pre-setting down issues. It is the Master’s expectation that the parties would normally only require a maximum of three reviews, after which the case should be set down and timetabled for hearing. However if the parties are not ready following the three review hearings, the Master will refer the case to the Senior Queen’s Bench Division Judge, Mr Justice McAlinden.
These periodic reviews before the Master have been a welcome addition, helping to establish realistic timetables whilst ensuring case progress can be controlled more robustly.
Expert witnesses have significant responsibilities within clinical negligence cases, which derives from their unique and vital role in this area. It is, therefore, important that the chosen expert has the relevant current expertise and does not fall short of the required standard.
The Expert Evidence (Clinical Negligence) Practice Direction 2021 No. 2, provides bespoke guidance pertaining to expert instruction in this area of practice, and was introduced at the same time as the Clinical Negligence Protocol. It includes several requirements:
The Protocol also introduced the following conditions regarding the exchange of expert reports and minutes arising for expert meetings:
It is important to note that cost budgets are not applied in this jurisdiction, unlike in England and Wales. Neither the plaintiff nor the defendant need to seek authority from the Master in Court for a certain expert fee. Also, in this jurisdiction, the expert’s terms and conditions would be obtained and agreed prior to formal instruction unlike in England where often the experts increase the cost of the report after they have completed it.
Long gone are the days of parties keeping their cards close to their chest until the last opportunity. The Protocol definitely promotes a ‘cards on the table’ approach to medical negligence claims, which is welcomed by both plaintiff and defence practitioners in Northern Ireland.
In particular, the introduction of the Masters’ Reviews and case management directions have had a positive impact on maintaining the momentum of a case, enabling the defendant to retain a degree of control in ensuring that it does not become stagnant.
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