Kerry Underwood

Archive for March 2014

The Pre-Action Protocol for the Resolution of Clinical Disputes

with one comment

  • encourages a climate of openness when something has “gone wrong” with a patient’s treatment or the patient is dissatisfied with that treatment and/or the outcome.
  • provides general guidance on how this more open culture might be achieved when disputes arise;
  • recommends a timed sequence of steps for patients and healthcare providers, and their advisers, to follow when a dispute arises. This should facilitate and speed up exchanging relevant information and increase the prospects that disputes can be resolved without resort to legal action.


Written pre-Jackson-Mitchell the protocol states:

“1.13      If proceedings are issued it will be for the court to decide whether non-compliance with a protocol should merit sanctions……

“1.14      If the court has to consider the question of compliance after proceedings have begun it will not be concerned with minor infringements, eg a failure by a short period to provide relevant information. One minor breach will not entitle the “innocent” party to abandon following the protocol. The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions”.

Those paragraphs must now be read in the shadow of the Mitchell decision.


The Aims of the Protocol

2.1          The general aims of the protocol are –

  • to maintain/restore the patient/healthcare provider relationship;
  • to resolve as many disputes as possible without litigation.

2.2          The specific objectives are –


  • to encourage early communication of the perceived problem between patients and healthcare providers;
  • to encourage patients to voice any concerns or dissatisfaction with their treatment as soon as practicable;
  • to encourage healthcare providers to develop systems of early reporting and investigation for serious adverse treatment outcomes and to provide full and prompt explanations to dissatisfied patients;
  • to ensure that sufficient information is disclosed by both parties to enable each to understand the other’s perspective and case, and to encourage early resolution;


  • to provide an early opportunity for healthcare providers to identify cases where an investigation is required and to carry out that investigation promptly;
  • to encourage primary and private healthcare providers to involve their defence organisations or insurers at an early stage;
  • to ensure that all relevant medical records are provided to patients or their appointed representatives on request, to a realistic timetable by any healthcare provider;
  • to ensure that relevant records which are not in healthcare providers’ possession are made available to them by patients and their advisers at an appropriate stage;
  • where a resolution is not achievable to lay the ground to enable litigation to proceed on a reasonable timetable, at a reasonable and proportionate cost and to limit the matters in contention;
  • to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims.

Awareness of Options

  • to ensure that patients and healthcare providers are made aware of the available options to pursue and resolve disputes and what each might involve.

Obtaining the health records if dealt with in paragraph 3.7 to 3.3.13 and Annex B consists of approved standard forms.

Paragraph 3.14 to 3.20 deals with the letter of claim and a template appears at Annex C1, and a template response is at Annex C2.

Paragraph 3.20 provides that letters of claim are not intended to have the same formal status as a pleading and nor should any sanctions necessarily apply if the letter of claim and any subsequent statement of claim in the proceedings differ.

Proceedings should not be issued until after four months from the letter of claim unless there is a limitation problem and/or the patient’s position needs to be protected by early issue. (Paragraph 3.21).

Early offers to settle are dealt with at paragraph 3.22 and 3.24 states that the healthcare provider should acknowledge the letter of claim within 14 days of receipt and should identify who will be dealing with the matter.

A reasoned answer should be provided within four months of the letter of claim and

  • if the claim is admitted the healthcare provider should say so in clear terms;
  • if only part of the claim is admitted the healthcare provider should make clear which issues of breach of duty and/or causation are admitted and which are denied and why;
  • if it is intended that any admissions will be binding;
  • if the claim is denied, this should include specific comments on the allegations of negligence, and if a synopsis or chronology of relevant events has been provided and is disputed, the healthcare provider’s version of those events;
  • where additional documents are relied upon, eg an internal protocol, copies should be provided.


If the patient has made an offer to settle, the healthcare provider should respond in the response letter, preferably with reasons.

The provider may make its own offer to settle at this stage, either as a counter-offer to the patient’s offer or of its own accord. Any such offer should be accompanied by supporting medical evidence and/or any other evidence relating to the value of the claim which is in the healthcare provider’s possession.


If the parties reach agreement on liability but time is needed to deal with the value of the claim then they should aim to agree a reasonable period.

Expert evidence is dealt with at paragraph 4.


Alternative Dispute Resolution is dealt with at paragraph 5.1 to 5.4 which read as follows:

5.1          The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs.

5.2          It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:

  • Discussion and negotiation. Parties should bear in mind that carefully planned face-to-face meetings may be particularly helpful in exploring further treatment for the patient, in reaching understandings about what happened, and on both parties’ positions, in narrowing the issues in dispute and, if the timing is right, in helping to settle the whole matter especially if the patient wants an apology, explanation, or assurances about how other patients will be affected.
  • Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of clinical negligence or an individual experienced in the subject matter of the claim).
  • Mediation – a form of facilitated negotiation assisted by an independent neutral party. The Clinical Disputes Forum has published a Guide to Mediation which will assist – available on the Clinical Disputes Forum website at
  • The NHS Complaints Procedure is designed to provide patients with an explanation of what happened and an apology if appropriate. It is not designed to provide compensation for cases of negligence. However, patients might choose to use the procedure if their only, or main, goal is to obtain an explanation, or to obtain more information to help them decide what other action might be appropriate.

5.3          The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (, which lists a number of organisations that provide alternative dispute resolution services.

5.4          It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.


Written by kerryunderwood

March 26, 2014 at 9:00 am

Posted in Uncategorized


with 13 comments

Civil Legal aid is abolished, Employment Tribunal claims are down 79% due to fees, recoverable costs in personal injury are slashed, court fees are about to treble in some cases, Judicial Review is to be heavily curtailed, criminal lawyers are on strike, the Court of Appeal rules that the efficiency of the State comes before Justice and very many senior and respected commentators feel that we risk losing all that has been achieved in the 800 years since Magna Charta.

So the Legal Service Ombudsman may have felt that there are matters of rather more pressing concern than the nomenclature of no win no fee.  However he has prepared yet another of his reports which even under the Mitchell criteria would probably qualify as trivial.  I have hesitated before even bothering to write about it, but he is the Legal Services Ombudsman and the report shows such ignorance that I will spare it a few words.

The Legal Services Ombudsman is a senior civil servant.  Consequently he should refrain from highly political, controversial statements which many of us believe to be untrue insurance company inspired propaganda, eg in relation to the Jackson Reforms.

“aim of these changes is to make legal services more accessible while managing costs” (That is a verbatim quote!)

“The “no win, no fee” model has played its part in fostering a culture of “ambulance chasing” and fraudulent claims, which has inadvertently driven up insurance premiums”.

“moves to rein in the burgeoning personal injury market”.

“The “no win, no fee” market has become increasingly aggressive”.

That is right-wing rhetoric, as well as simply untrue.  Imagine the Ombudsman saying:

The “no win , no fee” model has allowed millions of our citizens to have access to justice which would otherwise have been denied to them by this Government’s savage attack on the ability of ordinary people to go to law.

“They have also cut fraudulent claims as lawyers will be very careful about taking on a losing claim, as they do not get paid.  Under the old system the lawyer gets paid win or lose and so had no interest in the merits of the claim, fraudulent or otherwise.

“We must protect no win no fee at all costs.  It is the only thing keeping the civil litigation system alive.  We must encourage all injured people to seek justice”.

Can’t quite see him coming out with that can you, even though it is obviously true!


Transfer of risk

 The Ombudsman complains that there “is a structural weakness in the nature of the agreements which allows some lawyers to pass the risk of unrecovered costs on to the consumer”.

It is not a structural weakness; it is part of the design and what is wrong with it?  What in fact is happening is that the lawyer may be agreeing to charge no fee in the event of defeat, but to charge disbursements.

That is still a massive benefit to the client as compared with hourly rate win or lose funding.  There is no “transfer of risk” except from the client to the lawyer.  All it means is that we are taking only 95% of the risk as compared with 100%.

The hourly rate win or lose brigade are taking 0% of the client’s risk.

In any event this has only occurred because Parliament has abolished recoverability of after-the-event insurance premiums; such insurance of course covered own disbursements and paid its own premium thus ensuring that for a no win no fee client it was just that.

How about this for a totally inaccurate statement of the law; upon which much of the Ombudman’s report is based:

“if the cases loses, they [no win no fee lawyers] are left responsible for the other side’s costs as well as their own”.

No we are not! Wrong.  End of.  Two Court of Appeal decisions are relevant.

In Flatman and German v Weddall and Barchester Health Care Limited [2013] EWCA Civ 278

 the Court of Appeal held that solicitors who help their clients by funding the cost of disbursements should not be liable for costs if the case fails even if no After-the-Event insurance is in place.

Of course the assumed starting point was that we were not allowed to fund such disbursements without risking a costs order; that is why many claimant lawyers felt they had to charge clients disbursements even in the event of defeat, the practise that the Ombudsman so deplores.

The Law Society intervened successfully, on behalf of solicitors, to allow us to pay our clients’ disbursements.  Yes,  Mr Ombudsman, as a profession we went to court to get an order that we could pay our clients’ disbursements.  Can’t quite see that in your report.  Must have missed it.  Please tell us where it is.

In Heron v TNT (UK) Limited and Mackrell Turner Garrett (a firm) [2013] EWCA Civ 469

 the Court of Appeal dismissed an attempt by the employers’ insurers to obtain an order for costs against solicitors who had been acting for the employee until they withdrew from the case.  The claimant had not had after-the-event insurance.  In a passage quoted with approval by the Court of Appeal the Judge at first instance had said:

“As to the suggestion [the solicitors] stood to gain a substantial financial benefit from the case (both in terms of profit costs and a success fee), this is undoubtedly true in the sense that any solicitor engaged on a CFA has an interest in the outcome of the case.  If the submission [is] that this of itself will render a solicitor liable to a [wasted costs order] or [non party costs order], it is simply contrary to the public policy that parties, and in particular, impecunious parties, should have access to justice when they do not have the means to fund litigation themselves.  There must be additional factors before an order can be appropriate”.

The Court of Appeal went on to say, at Paragraph 37:

“A solicitor is entitled to act on a CFA for an impecunious client who they know or suspect will not be able to pay own (or other side’s costs) if unsuccessful.”


Case Studies

 The Ombudman’s Report is illustrated by case studies.  Case studies are anecdotal; they are generally used when you do not have the evidence to back up your case.  If you have the evidence to back up your case then you use that evidence.

So here are a few conclusions from some of my case studies:



 Six case studies below show that all the defendants in these cases were found Not Guilty.



 Six case studies below show that all the defendants in these cases were found Guilty.


Like the current Lord Chancellor, the Legal Service Ombudsman is not a lawyer.  It shows.


The post of Legal Service Ombudsman achieves nothing.  It is time it was scrapped.

Written by kerryunderwood

March 24, 2014 at 10:08 am

Posted in Uncategorized

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