1. Introduction
It is the stated aim of the Overriding Objective as set out in Order 1 Rule 1(a) of the Rules of the Supreme Court (Northern Ireland) 1980 as amended, is to enable the Court to deal with cases justly. In doing so the Court will wish to ensure that the parties are on an equal footing, that expense is saved and that litigation is dealt with in a manner which is proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.
Central to the Overriding Objective and the pre-action protocol for clinical negligence litigation is the desire to ensure early and effective communication between parties to litigation. This objective, the desire to enable the Court to deal with matters justly, has found further expression in the establishment, in recent times, of the system of periodic review of clinical negligence cases by the Senior Queen’s Bench Judge, at present the Honourable Mr Justice Gillen.
2. Capture by the Case Review Procedure
There are two principle routes whereby a clinical negligence case will come to be reviewed by the Senior Queen’s Bench Judge. One is voluntary, the other involuntary. Assuming that you have prosecuted your clinical negligence case with reasonable alacrity, if at the time of service of a Notice of Setting Down you identify the case as involving issues of alleged clinical negligence, then the case will automatically be captured by the process and will receive a date for review several months hence. At the present time it is the speaker’s experience that it is taking anywhere between 4 – 6 months for a case, after setting down, to come into the list for review.
The second means by which a case will come forward for review is initiated by the Central Office of the High Court. This is essentially involuntary in the sense that the solicitor will have little to do with the listing of the matter. Over the course of the last number of years the Central Office has been engaged in a exercise of reviewing all extant Writs of Summons. Correspondence was directed to solicitors’ offices during the course of 2008 requesting solicitors to identify whether extant Writs of Summons were still ongoing. Those Writs identified as ongoing have been systematically reviewed by the Court since that time. Additionally the system of review by the Masters has also been initiated and a case may be referred by the Master to the Judge if it is identified as a case involving allegations of clinical negligence. It should be noted that at the present time the Senior Queen’s Bench Judge is particularly concerned by delay in cases involving minors or persons under a disability and priority has been given to such actions.
Where an action has been set down by the Plaintiff’s representatives for hearing it is of course open to the representative to request, in writing, that the case be listed for review before the Court as a matter of urgency if the circumstances of the individual case are such as to require that the matter be dealt with expediently. Thus for example where the Plaintiff is elderly or in poor health, it is open to that individual’s solicitor to seek an early review or trial of the action. Such a request will be accommodated in the speaker’s experience.
3. Notification of Review
By whatever means the case comes to the attention of the Court, you will ultimately receive notification from the Central Office that the case has been listed for a review hearing on a particular day at a particular time. When the reviews were initially established it was the practice of the Court to review clinical negligence cases on the first Wednesday of the month commencing at 9.30 am. As the practice has developed it has been the speaker’s experience that cases are now reviewed at any point during the course of the month. Whilst initial or first reviews generally will take place on either the first or the third Wednesday of each month, after the case has been captured by the review process, the case can be reviewed at any point thereafter.
Before attendance at Court for the review, a number of preliminary matters should be considered:-
(a) Whilst it is not mandatory to do so, at present, it is most certainly advisable to direct correspondence to the Court in advance of the review, advising the Court as to the present state of readiness of the action. The content of the said correspondence should reference those matters which will ordinarily be considered at review; namely, listing, exchange of expert evidence (liability and quantum), outstanding interlocutory matters, pleadings and amendment thereto, consultation, “Scott Schedules”, the arrangements for the taking of witness evidence, Order 38 applications, the preparation of an agreed trial bundle, skeleton arguments etc. Any correspondence directed to the Court Office should obviously be copied to the representatives of the other party/parties. Additionally, if you have not set the action down for hearing and the Court has initiated the review, you should ensure that in advance of the review, that you lodge the pleadings in the case.
(b) Before attending at Court on the date of the review, it is advisable to check the locus and time of the hearing on the Northern Ireland Court website (www.Courtsni.gov.uk) on the eve of the hearing. Whilst it is usually the case that the matter will be heard before the Senior Queen’s Bench Judge at 9.30 am in the Nisi Prius Court, I have in recent times been before other Judges, in other Courts, at other times.
(c) Thirdly and most importantly, the person who attends before the Court to conduct the review on behalf of a party must be thoroughly acquainted with all aspects of the case. That person should either be the person who has carriage of the action or at the very least is fully briefed in relation to the substantive issues in the case. That person must be capable of addressing the Judge on all issues from a position of knowledge. Suffice it to note that the Court will not tolerate a situation whereby a junior member of staff is dispatched by a firm, without sufficient or any knowledge of the case. If the person in attendance at Court cannot address the Judge in relation to the case from a position of knowledge then you can expect a wasted costs order to be made personally against you or your firm and you can expect to be summarily brought before the Court at 9.30 am on the next day of business to explain your failure to ensure any or adequate representation at the time of the original review. Solicitors are of course entitled to instruct Counsel to appear on behalf of their client at the time of the review.
4. The Review
The amendment to procedure which we have witnessed in recent years and which we shall continue to witness in the months and years to come has been designed to encourage a “cards on the table” approach to litigation. The days of “trial by ambush” must surely be numbered, if they have not already been consigned to the recycle bin. The clinical negligence review is of a piece with the prevailing Overriding Objective to ensure equity and openness in litigation. In practical terms this means that at review, the Court will wish to find out where the parties are in any given case, when the case will be ready for hearing and if the case is not ready, what more needs to be done to ensure that the matter may be brought to a just conclusion in a speedy and efficient manner. At review the Court will issue directions to the parties to ensure effective judicial management of extant litigation. In doing so the Judge will address the parties with reference to specific matters. These include:-
(a) Listing
First and foremost the Court will be concerned to know when the case will come to trial. The Court will wish to be addressed as to whether or not the case is ready to be heard and if not, why not. If the case is ready to be heard then you are well advised to seek to agree a hearing date between the parties in advance of the review. Pre-review agreement is all the more important in clinical negligence cases where it is often the case that the Plaintiff’s witnesses will be required to attend from Great Britain or the Republic of Ireland. Additionally the Defendant will often be seeking to secure the attendance of multiple witnesses as to fact, many of whom may have moved on and no longer work within the Trust, organisation or jurisdiction where they were engaged at the time the subject matter of the litigation occurred. It is my practice to ascertain the availability of the Plaintiff and his/her witnesses upon receipt of the notification of review and thereafter to notify the representatives of the Defendant of a series of alternative dates, usually 3-6 months hence which are suitable to the Plaintiff.
On certain occasions parties may be unable to locate or speak to witnesses in advance of review callover. In such circumstances the Court will normally list the matter provisionally and direct that if the date unsuitable then the parties may agree to an alternative. Such an alternative date must be notified to the Court within 14 days. If such an alternative date is notified to a Court within 14 days then the re-listing of the matter can be accomplished by correspondence. If however that time period is not observed then the parties will usually be required to come back before the Judge to make an oral application.
If a date for hearing can be agreed before the review callover then the said date should be communicated to the Court Office as an agreed date. Confirmation of hearing should be requested. Whilst there is no hard and fast rule, the practice suggests that the Court will list at most three clinical negligence matters on the same date. The Court prefers that actions commence on a Monday though cases can be started on other days by agreement subject to the demands of an individual case.
It is important to note that whilst the date can be agreed before review, that in itself will not obviate the requirement for a review hearing and for the attendance of the representatives at same. Whilst listing is the principle concern of the review process, it is by no means its sole or only focus.
(b) Exchange of Medical Evidence - Liability, causation, condition and prognosis
Unlike other jurisdictions, where the exchange of evidence on liability, causation, condition and prognosis occurs as a matter of course in accordance with established practice, regrettably in this jurisdiction actions concerning allegations of medical negligence are excepted from the provisions of Order 25. Order 25 Rule 1 specifically provides that the Order applies to all actions for damages in respect of personal injury or death “… except (while liability remains an issue) actions grounded on an allegation of medical or surgical negligence”. Thus there is no obligation upon the parties, at present, to disclose their medical evidence and accordingly the Court has no power, at present, to direct its disclosure. The best that the Court can presently do is to direct that the parties give “consideration” to the mutual simultaneous disclosure of liability evidence and the sequential exchange of medical evidence in respect of quantum.
To this general proposition however a number of salient caveats must be added. Firstly the Court reserves to itself the power under Order 62 Rule 10 and Rule 10A to determine the reasonableness of costs incurred. Rule 10 provides that “… where it appears to the Court in any proceedings that anything has been done, or that any omission has been made, unreasonably or improperly by or on behalf of any party, the Court may order that the costs of that party in respect of the act or omission, as the case may be, shall not be allowed and that costs occasioned by it to any other party shall be paid by him to that other party.” Rule 10A applies a penalty in costs where oral evidence was not reasonably necessary. Specifically it states that “…. where it appears to the Court in any proceedings that … any witness has been called to give oral evidence where his evidence could have been put before the Court in some other manner, and … his giving oral evidence was not reasonably necessary, the Court may order that the costs occasioned by calling the witness to give oral evidence shall fall upon the party who caused him so to be called….” It is also worth noting that if appears to the Court that costs have been incurred unreasonably or improperly in any proceedings or have been wasted by failure to conduct proceedings with reasonable competence and expedition the Court may make a solicitor personally liable for costs.
Secondly we are witness to a changing landscape as far as clinical negligence litigation is concerned. Clinical negligence cases will be brought within the purview of Order 25 in early course. Indeed it is anticipated that before the commencement of the Michaelmas term this year Order 25 will have been amended. This will obviously have significant implications for clinical negligence practitioners.
Until an expert’s report is disclosed to the other side, instructions to the expert as well as the report will be protected by legal professional privilege. By disclosing a report, at present voluntary in this jurisdiction but as noted above, likely to become compulsory in early course, a party waives such privilege. In England and Wales however disclosing the final version of an expert’s report does not waive privilege in earlier drafts of reports.
In England and Wales, the instructions given to the expert are not protected by privilege. Indeed the expert is required to include in his report a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed by him.
The issue of disclosure of these instructions was the subject of litigation before the Court of Appeal in the case of Lucas –v- Barking, Havering and Redbridge Hospitals NHS Trust (2003)(EWCACiv1102). The Defendant sought disclosure of, inter alia, a witness statement and other documentation referred to in an expert report. The Court of Appeal took the view that such disclosure could not be compelled. The Civil Procedure Rules provide protection, in England and Wales, in that the Court will not order disclosure of any specific document unless it is satisfied that there are reasonable grounds to support the view that the statement of instructions is inaccurate or incomplete. The Court of Appeal held that there was no obligation upon the expert to set out all the information contained in the statement or all the materials supplied. It stressed that the party seeking disclosure must establish that there are grounds for believing that the statement in the expert’s report about the instructions received is inaccurate or misleading.
Whilst this goes some way beyond the subject matter of the present talk, all parties engaged in this area of practice are going to have to give more consideration to the preparation of expert evidence than may previously have been the case. It may be that such considerations are matters for another day, but it is worth noting at this point that in England and Wales, the expert report on liability and causation goes through a rigorous process of evolution before it is deemed fit for disclosure. A first stage report will be prepared, an initial conference with Counsel and other experts will serve to refine the contents and thereafter, in general terms, a final report will be prepared. This is a long way from what is, I surmise, the usual practice in this jurisdiction at the present time.
(c) The number of experts
If the parties to litigation intend to call more than two medical experts, or more than one non-medical witness, then the Judge will direct that the party makes an application pursuant to Order 38 Rule 1(B) for leave to call additional expert witnesses. Be advised that the approach to Order 38 Rule 1(B) applications before the Masters has been revised to reflect the overall changes being wrought in our litigation process. Those changes are detailed in the Masters’ Practice Note Number 2 of 2009 published on 26th March 2009.
In moving such an application the parties should be in a position to satisfy the Court of the following matters; the identity and specific discipline of each expert it is proposed to call, the reasons necessitating that each expert give oral evidence, the steps taken to agree the evidence of each expert, the nature of the issue in dispute which prevents agreement and what consideration has been given to discussions between the experts to clarify and reduce the issues in dispute. The practice direction provides that in complex cases, the Court, in giving leave to call additional experts may also direct that preparation of a “Scott Schedule”.
(d) Non- medical quantum reports
If not yet complete, the Court will direct the preparation and completion of such reports (eg forensic accountancy, care, architects, therapists, etc). The direction will require the reports to be completed by a specific date. It is therefore important that in advance of a review if a party has not already done so, that detailed consideration be given to the measure of special loss in a particular action. You will be expected to be able to advise the Court of what reports are likely to be required and of the timetable for the preparation of same. If such reports have been commissioned or are to be commissioned, then you can expect to be directed to give consideration to the sequential exchange of expert reports. In other words the Plaintiff will disclose its reports in the first instance, the Defendant thereafter.
(e) Amendment of Pleadings
It was formerly the practice of many Plaintiff’s solicitors to apply to amend pleadings, particularly the Statement of Claim, with the consent of the Defendant’s representatives on the first day of the hearing. That approach is no longer acceptable and will not be tolerated by the Court. The Court will direct, at review, if required that pleadings must be amended by a certain date.
Suffice it to note for present purposes that such amendment may be made without the leave of the Court in accordance with the provisions of Order 20 Rule 12 of the Rules of the Supreme Court (Northern Ireland) 1980, as amended. That Rule provides that any party may amend any pleading in a cause or matter with the consent in writing of the other party or parties at any stage of the proceedings. In practice this means that if such consent to the proposed amendment is forthcoming, then the pleading may be directed to the Court Office for enclosure in the Judge’s papers, without the necessity of issuing a Summons, thus avoiding additional costs. Of course, if consent is not forthcoming then such an application will have to be brought pursuant to Order 20.
(f) Defence
For Plaintiff practitioners, the review hearing also offers an opportunity to raise with the Judge an issue concerning the nature of the Defendant’s Defence. Whilst the amendment of Order 18 is under active consideration at the present time, it is still a regrettable feature of our system of litigation that the Defendant lodge what is colloquially known as a “blanket denial of liability”. Those acting for Defendants at the time of review can expect to receive the by now standard warning from the Senior Queen’s Bench Judge that ultimately, if at the trial of the action the Plaintiff is taken by surprise due to a default in pleading of the Defence, the Defendant can expect to shoulder the consequences of that failure, for example by way of a wasted costs order in the event that the hearing of the case must be aborted to permit the Plaintiff to fully address the Defence now raised.
Order 18 Rule 8(1) provides that a party must in any pleading subsequent to the Statement of Claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality which he alleges makes any claim or defence of the opposite party not maintainable or which, if not specifically pleaded, might take the opposite party by surprise or which raises issues of fact not arising out of the proceeding pleading.
The failure of a Defendant to properly plead a Defence has already been the subject of a Judgment by Mr Justice McLaughlin in the case of Algie –v- Eastern Health and Social Services Board (1996 No 1210). In that case the Defendant was ordered to pay all the costs thrown away by virtue of the action having to be removed from the list for trial on the first day of the hearing. At the hearing of this action the Plaintiff was advised, for the first time, that medical records which had previously been agreed were in fact incorrect. This necessitated a further detailed investigation of the issues on the part of the Plaintiff and meant that the case could not proceed on the day in question.
(g) Interlocutories
The Court will direct at review that all outstanding interlocutories will be dealt with by a specific date. In such circumstances the parties, in advance of the review should consider whether further interlocutory relief will be sought. If, for example, Replies to a Notice for Further and Better Particulars are outstanding, then you may expect to be requested to explain the reasons for your default.
(h) Witness evidence
I have already discussed the exchange of medical evidence and the calling of more than two medical experts or more than one non-medical expert. If exchange of expert evidence does take place or is anticipated to happen, then you may expect the Court to direct that you give consideration to a meeting, by telephonic means or otherwise between the experts. At such a meeting the experts, medical or quantum, will be expected to prepare a “Scott Schedule” and agree same in relation to all matters which are agreed and those matters which are in dispute. Once again the Court will set a timetable in respect of the achievement of this objective.
Whilst such a meeting cannot be compelled under present rules, indeed even in England and Wales such meetings are not mandatory, the Court does have the power to disallow costs at the hearing of the case if it is felt that oral evidence was unnecessary.
The Court will also request that the parties will give consideration to the use of a live television link facility for the giving of evidence by the medical experts in the case. In the event that that is agreed, the Court Office must be notified not less than three weeks prior to the date fixed for trial so that arrangements for the hearing may be made.
(i) Trial bundle
You may expect the Court to provide a direction concerning the compilation and supply to the Central Office of a properly collated, paginated and indexed booklet of all copy medical notes and records and any medical literature relied on by the experts in the case 14 days prior to the date for trial. It is the responsibility of the Plaintiff’s solicitors to prepare the bundle. The preparation of the said bundle should now be somewhat more straightforward having regard to the provisions concerning medical notes and records in the pre-action protocol. As noted it is the duty of the party affording initial disclosure in the action to make clear and complete copies, properly paginated. All parties will additionally be directed to have in Court the originals of all such documents produced.
(j) Skeleton arguments
The Court will direct that the parties lodge skeleton arguments in respect of any issue of law at least 7 days prior to the date of the trial. If issues of law, for example, consent, are likely to arise then it is helpful to flag this to the Court at the time of review. Issues should be clearly pleaded in any event as part of the case.
(k) Consultation between the parties
You may expect the Senior Queen’s Bench Judge to provide a direction that the parties give consideration to convening a meeting between their respective legal representatives for the purpose of discussing resolution of the case on or before a certain date. Once again this chimes with the protocol which expressly recognises that litigation should be the last resort, the Court being reserved to those cases where a genuine dispute in respect of fact or law exists.
(l) Adjournment
Finally, the standard directions issued by the Court will always include the requirement that if an application is to be made to take a case out of the list, it must be made to the Senior Queen’s Bench Judge and to no other.
Patrick Mullarkey
Campbell Fitzpatrick Solicitors
Copyright June 2009