Jackson Unreformed: Pre-action Protocols {plus free download}

To mark the two-year anniversary of the Jackson Reforms, we asked a cross-section of practitioners, including Lord Justice Jackson himself, for opinions and comments on some of his final recommendations which did not make their way into those April 2013 Jackson Reforms.

We made the document available to our subscribers in our April newsletter. If you'd like to read the full PDF, you can access it by entering your details in the box on the right.

The full contents includes:

• Jackson on Jackson - Lord Justice Jackson

• Recoverability of success fees – Andrew Parker

• The indemnity principle – Peter Hurst

• Court fees and hourly rates – Richard Harrison

• Part 36 – Ali Tabari

• Gaps in the fixed costs regime – Andrew Parker

• Court fee increases – Paul Edwards

Pre-action Protocols - Amanda Stevens

The final piece in the series is from Amanda Stevens, partner at Irwin Mitchell and member of the Civil Procedure Rules Committee, who examines Lord Justice Jackson’s original recommendations on pre-action protocols and why they have, or have not, been implemented.

What were the initial recommendations Jackson made on pre-action protocols?

Jackson LJ was chiefly concerned with pre-action conduct which had the potential to front load the costs of litigation prior to any judicial intervention. The cost of compliance with the existing pre-action protocols was also noted as cause for concern. He stated in Chapter 35 of the Review of Civil Litigation Costs: Final Report that the issues ‘surrounding pre-action protocols to be some of the most intractable questions in the Costs Review’. He was unable to secure data around the cost of compliance with the protocols, but was aware of significant problems with non-compliance. He expressed surprise at the degree of unanimity of enthusiasm for the protocols and reported findings that the majority of personal injury claims and a substantial minority of clinical negligence claims were resolved during the protocol period. Overall, his view was that the personal injury protocol had been a success and any front loading of costs was more than offset by the number of early settlements. More significant changes were recommended for the protocol dealing with resolution of clinical disputes as he concluded ‘excessive’ costs were being incurred for meritorious cases which ought to settle pre-issue but currently fail to do so.

Jackson LJ’s recommendations can be summarised as follows:

Personal injuries

• reform of the medical expert reporting process, such that a defendant would not be permitted to obtain their own expert evidence in a low value case if they simply did not like the report from the expert nominated by the claimant—instead he recommended that a defendant having approved the claimant’s choice of expert should not then instruct a separate expert without good reason
• further a defendant should have a limited period in which to put questions to the claimant’s expert

Clinical disputes

• there should be financial penalties for any health authorities, which, without good reason, failed to provide copies of medical records in accordance with the protocol
• a defendant’s response should be provided within four months of receipt of the letter of claim, and any letter sent to a NHS Trust should be copied to the NHS Litigation Authority (NHSLA)
• in cases where the NHSLA proposed to deny liability (other than in ‘frivolous’ claims) the NHSLA should obtain their own independent evidence on both liability and quantum within the protocol response period
• there should be an escalation process within the defendant organisations to whom the claimant solicitors could revert when encountering difficulties in the pre-action period
• the protocol should provide a limited time period for settlement negotiation where the defendant offered to settle without any formal admission of liability

Why were these reforms not included in the Jackson Reforms launched in April 2013?

On publication of the Final Report, the Civil Justice Council (CJC) commissioned further work on the protocols with stakeholders. The Civil Procedure Rule Committee already had a heavy drafting agenda with all the other reforms that were to be introduced as part of the interlocking package in April 2013. The Civil Procedure Rule Committee was provided with the CJC consultation material and a sub-committee was constituted to focus on the 11 pre-existing protocols and the pre-action Practice Direction. Initial drafts were issued for wider consultation in summer 2014 and final versions were produced ready for implementation in April 2015. The length of time taken to complete the review reflects the complexity of the task and the desire to streamline all protocols into a unified format wherever possible.

How do the changes to the personal injury protocol match the recommendations made by Jackson LJ?

All protocols have now been broadly modelled along the lines of the dilapidations pre-action protocol which was felt to reflect best practice in terms of drafting style, layout and clarity. The main features of the revised personal injury protocol are as follows:

• the historic narrative introduction to the original protocol has been removed as it was felt users were now very familiar with the purpose of regulating pre-action conduct
• the pre-action process from start to finish has been set out in a flow diagram at the end of the document to present the user with a ‘bird’s eye view’ of the new protocol
• the importance of rehabilitation in personal injury claims has been reflected by moving the specific section that deals with it closer to the beginning of the protocol
• there is now cross referencing to the new Practice Direction on pre-action conduct which raises the possibility of sanctions for non-compliance but also emphasises that these are unlikely to be concerned with ‘minor technical or trivial shortcomings’—this reflects judicial language in recent case law
• the scope of the protocol needed to be redefined given that there are now two low value protocols in personal injury claims as well as a disease and illness protocol—the revised personal injury protocol sets out the entry and exit points between one protocol and another, for example if there is a change in value, or liability is not admitted under the low value protocol and the claim then migrates into this general personal injury protocol
• the definition of liability has been harmonised with that utilised in the low value protocols to avoid confusion—no defendant may admit liability but not admit any damage caused
• there is a new obligation on defendants to identify any other correct defendant to the claim where there are several potential parties—this is due to the introduction of the qualified one-way costs shifting (QOCS) regime where pursuing the wrong party could have more serious adverse costs consequences than previously
• in response to submissions by defendants, the sample letter of claim now makes it clear that a claimant should describe the functional impact of their injury as well as the clinical label given to the injuries—this is to enable the defendant to make a better valuation at the earliest opportunity
• the template for the letter of claim makes it clear that the claimant’s national insurance number should not be provided in the same letter as other personal data to protect against identity theft
• parties are urged to work collaboratively to perform disclosure and be prepared to explain the purported relevance of particular documents sought rather than seek blanket disclosure from the annexed list of documents that might be required pursuant to statutory obligations
• the list of documents that might be required to be produced pursuant to statute has been substantially updated to reflect the changes in the statutory environment since the first protocol was introduced
• in accordance with Jackson LJ’s recommendation it has been re-iterated that fast track claims are expected to be settled on the basis of one claimant medical report rather than allowing a defendant to automatically seek to instruct their own expert—the two separate expert witness sections in the earlier protocol have been merged into one
• there is a slightly modified template letter of instruction to an expert witness at Appendix D
• there is an updated section on ADR possibilities
• there is a new requirement in respect of schedules of loss that ongoing losses are identified and reported on to the defendant—furthermore that a defendant should be kept appraised if it is intended to serve an updated schedule at some future point

How do the changes made to the pre-action protocol for resolution of clinical disputes match the recommendations made by Jackson LJ?

• Similar to the personal injury protocol, there has been substantial pruning of the historical introductory material to the original protocol.
• There is greater prominence to a section on non-compliance and sanctions although this does not go as far as Jackson LJ suggested in respect of non-payment of medical records where they have been delivered late. It is considered that statutory powers would need to be invoked to bring about that change.
• Defendants are now alerted to the potential obligations imposed by the statutory duty of candour within the Health and Social Care Act 2008, s 20 (regulated activities) and the potential for offering an apology.
• Similar to the personal injury protocol there is now an early section devoted to rehabilitation to emphasise the importance of early intervention in this type of dispute.
• A new template letter has been added at Annex B for notifying the defendant of a potential claim before the claimant is in a position to particularise the details of the negligence. This was introduced to assist the defendant with supplying a timely, substantive letter of response, subsequent to the letter of claim in accordance with Jackson LJ’s recommendations.
• Provision has been made for letters of claim to be copied to the NHSLA at the time of being sent to the defendant again in accordance to recommendations in the Final Report, although this was already contained in the previous protocol.
• A revised template letter of response contains a signpost to reliance on expert opinion once again in accordance with Jackson LJ’s recommendations. Para 3.24e in the protocol itself also sets this out more fully so that a defendant should identify disciplines of expert relied upon in respect of breach of duty and causation The response time for the defendant is stipulated as four months but this was already provided in the pre-existing protocol.
• There is now greater encouragement to make a settlement offer within the pre-action period backed by documentary evidence. There is a specific exhortation to use the Part 36 mechanism for the making of settlement offers. However, the revised protocol stops short of a three-month moratorium for parties to negotiate settlement. Instead it simply states at para 3.27 ‘if the parties reach agreement on liability….but time is needed to resolve the value of the claim, they should aim to agree a reasonable period’. It was thought that automatically permitting a three-month moratorium could encourage delay.
• The flowchart for resolving clinical disputes have been updated and the consent forms for obtaining medical records have been updated to display the October 2004 form agreed between the Law Society and the British Medical Association.

What outstanding pre-action protocol reforms remain?

It is clear from the foregoing that the vast majority of the protocol reforms have now been implemented. One significant area that remains at large is the question of pre-action budgeting. It was felt that legislation would be needed to give courts the power to set budgets at pre-action. Additionally, significant research would need to be undertaken to ascertain appropriate caps on pre-action costs without prior authorisation. No resource could be identified for this work.

Interviewed by Camilla Cardozo.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.