The call continues for pre-action protocols in clinical negligence claims in Ireland

After several years of careful consideration by review committees, key stakeholder groups and the subsequent preparation by the legislature of legislation, pre-action protocols in clinical negligence claims are yet to be introduced in Ireland. Despite the Legal Services (Regulation) Act coming into force in 2015, commencement of section 219 of the Act - the final step required for the drafting of the necessary regulations to formally introduce the pre-action protocols - has not been commenced.

Introduction of pre-action protocols will herald a seismic shift in how clinical negligence claims are dealt with in Ireland. Once introduced, it is anticipated the protocols will lead to the overwhelming majority of cases settling at the pre-action stage, decreasing the burden on the courts and improving the experience of claimants and defendants alike, by considerably improving the efficiencies of an inefficient system.

Administration of Civil Justice Review Report

In the recent publication, Administration of Civil Justice Review Report (October 2020), chaired by Mr Justice Peter Kelly, former President of the High Court, the esteemed review group (the Review Group) was tasked with reviewing and reforming the administration of civil justice in the State. The sheer scope of the ninety plus recommendations made by the Review Group highlights the deep dive which the Review Group carried out into the myriad of ways to improve the civil justice system in Ireland. A key recommendation of the Review Group was that the Minister for Justice in Ireland should give early attention to the introduction of the regulations prescribing the pre-action protocols in clinical negligence cases.

Amongst the numerous benefits that the Review Group highlighted of the introduction of pre-action protocols in Ireland, are early communication between claimants and defendants leading to early identification of issues; early and full disclosure of information and medical records; and the potential ability to resolve the majority of cases at the pre-action stage.

In England and Wales, Pre-Action Protocols were formally introduced to the civil justice system in 1999 as part of the Civil Procedure Rules, following Lord Woolf’s proposals as set out in the Access to Justice paper, published in 1996.

Lord Woolf identified that:

What is needed is a system which enables the parties to a dispute to embark on meaningful negotiation as soon as the possibility of litigation is identified and ensures that as early as possible they have the relevant information to define their claims and make realistic offers to settle.

Twenty-one years have passed since the introduction of the Woolf reforms in England and Wales and the benefits of their introduction are evident. NHS Resolution’s Annual Report of 2019/2020 records that of the 15,550 clinical and non-clinical claims resolved during that year, 71.5% were resolved prior to the issue of court proceedings, utilising pre-action protocols. The remaining 27.9% were resolved post-proceedings and 0.6% proceeded to trial. Of these figures, 11,682 of the claims were clinical claims and, again, 71% of the clinical claims settled in 2019 were resolved pre-action.

By contrast, in its 2019 Annual Report, the State Claims Agency in Ireland records that 53.7% of clinical and non-clinical cases were resolved at the pre-action stage (with damages being paid out in 23% of those cases), 43.8% resolved post-proceedings and 2.5% were resolved at trial.

The Review Group recommendations included the need to commence the pre-action protocol legislation and embed the protocols in Irish procedural practice. The Review Group also recommended that specialist lists be set up for clinical negligence claims and that cases be actively case managed by the courts, putting the progress of cases under the control of the courts, rather than the parties, with case management to be conducted by appointed Masters and Deputy Masters.

Such initiatives have worked incredibly well in England and Wales to improve court efficiency, but will have major resource implications in Ireland and will require very significant investment if the proposed changes are to be successfully introduced.

Comment

In Ireland there is currently a shortage of judges leading to delays in the commencement of trials. Unfortunately, significant disruption to the court system as a result of the COVID-19 pandemic has added to the existing delays.

Given this and combined with the benefits that pre-action protocols would bring to all parties involved in clinical negligence claims, the need to action the steps necessary to implement this long called for change to the civil justice system in Ireland, has been brought into sharp focus.