MODEL DIRECTIONS FOR CLINICAL NEGLIGENCE CASES
(2012) - before Master Roberts and Master Cook
Introductory note.
These are the Model Directions for use in the first Case Management Conference in
clinical negligence cases before the Masters.
A draft order in Word format, adopting the Model Directions as necessary, is to be
provided by e-mail to the Master at least 2 days before the hearing.
Parties are required to use the form of order at the end of this document – adapted
as necessary. From April 2013 CPR Rule changes will require parties to take as their
starting point any relevant Model or Standard Directions
The changes to the 2010 directions are to be found in paragraphs 4, 9, 10, 11, 19, 23,
and 25. The changes are necessary but are not radical.
The e-mail addresses of the clinical negligence Masters are:
master.roberts@judiciary.gsi.gov.uk
master.cook@judiciary.gsi.gov.uk
The Model Directions allow the court and the parties to be flexible. For example,
sequential exchange of quantum statements (say, with schedule and counter-schedule
of loss) may be appropriate. The sequential exchange of expert evidence on breach of
duty and causation may sometimes be appropriate.
It would be helpful if dates appeared in bold type.
Please note: Solicitors must ensure that the claimant is accurately described in the title
to the order: e.g., “JOHN SMITH (a child and protected party by his mother and Litigation
Friend, JOAN SMITH). It is never permissible to refer to such a claimant as “JOHN
SMITH”.
The order should make it clear that it is made pursuant to a Case Management
Conference or an application or both.
Please note the role of experts in the preparation of Agendas.
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THE MODEL DIRECTIONS
The annotations in italics are to assist the parties and are not part of the Model
Directions and should not appear in the order.
A draft order – without the annotations – appears at the end of this document.
Parties are requested to adopt this draft.
***
Allocation
1.
The case do remain on the Multi-track.
Allocation: The order states that “the case do remain on the Multi-track”. Allocation may
well have been dealt with before the CMC.
Preservation of Evidence
2.
The Defendant do retain and preserve safely the original clinical notes relating to
the action pending the trial. The Defendant do give facilities for inspection by the
Claimant, the Claimant’s legal advisers and experts of the said original notes upon 7
days written notice to do so.
Maintenance of records and reports etc
3.
Legible copies of the medical (and educational) records of the Claimant /
Deceased / Claimant’s Mother are to be placed in a separate paginated bundle at the
earliest opportunity by the Claimant’s Solicitors and kept up to date. All references to
medical notes in any report are to be made by reference to the pages in that bundle.
4.
The parties do retain all electronically stored documents relating to the claim.
Amendments
The following is suggested:
Permission to Claimant / Defendant to amend the Particulars of Claim / Defence in terms
of the draft initialed by the Master [or the draft served on / /12]; the Defendant to serve
an amended Defence by / /12. Costs of and occasioned by the amendments to be
borne by (usually, the party seeking permission to amend). [Where no draft is available,
but the form of the amendments is not contentious] (Party wishing to amend) to serve
draft amended [Statement of Case] by / /12. If no objection to the draft amendments,
response to be served by / /12, if objection is taken to the draft, permission to restore.
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Judgment
The following is suggested:
There be judgment for the Claimant with damages to be assessed.
Or
There be judgment for the Claimant for …% of the damages as are assessed (or agreed
by the parties) as due on a full liability basis.
Split Trial
[An order “That there be a split trial” is inappropriate. The following is suggested.]
5.
A preliminary issue shall be tried between the Claimant and the Defendant as to
whether or not the Defendant is liable to the Claimant by reason of the matters alleged in
the Particulars of Claim and, if so, whether or not any of the injuries pleaded were
caused thereby; if any such injuries were so caused, the extent of the same.
Disclosure
6.
There be standard disclosure [on the preliminary issue] [limited to quantum] by
list by
2012. Any initial request for inspection or copy documents is to be made
within 7/14 days of service of the lists.
Where there is a large number of documents all falling into a particular category, the
disclosing party may list those documents as a category rather than individually. See:
para 3.2 to Practice Direction 31A.
Factual Evidence
7.
Signed and dated witness statements of fact in respect of breach of duty and
causation [and quantum] shall be simultaneously exchanged by
2012.
Civil
Evidence Act notices are to be served by the same date. The witness statements of all
concerned with the treatment and care of the Claimant at the time of the matters alleged
against the Defendant shall be served under this paragraph.
8.
Signed and dated witness statements of fact in respect of quantum, condition
and prognosis shall be served by
2012 (Claimant) and 2012
(Defendant).
Civil Evidence Act notices are to be served by the same date.
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Expert Evidence.
A.
Single Joint Experts.
9.
Each party has permission to rely on the evidence of a single joint expert in the
following fields: [state the disciplines; and identify the issues*]. The experts are to be
instructed by
2012 and the joint expert is to provide his/her report to the
instructing parties by
2012.
In case of difficulty, the parties have
permission to restore before the Master.
If the parties are unable to agree on the identity of the expert to be instructed, the parties
are to restore the CMC before the Master. At such hearing the parties are to provide
details of the CVs, availability and the estimated fee of the expert they propose and
reasoned objections to any other proposed.
* These words may be deleted where the issues do not have to be defined.
B.
Separate Experts.
10.
In respect of breach of duty and causation, each party has permission to rely on
the evidence of an expert in the following fields: [state the disciplines; and the names of
the experts where known]; permission being given to call the said experts on matters
remaining in issue.
The reports of the said experts are to be simultaneously exchanged by
2012.
11.
In respect of quantum, condition and prognosis, each party ([where there are
several defendants] the Defendants acting jointly, unless otherwise directed) has
permission to rely on the evidence of an expert in the following fields: [state the
disciplines; and the name of the experts where known]; permission being given to call
the said experts on matters remaining in issue.
The reports of the said experts are to be served by:
Claimant:
Defendant(s):
2012
2012
Literature and CVs
12.
Any unpublished literature upon which any expert witness proposes to rely shall
be served at the same time as service of his report together with a list of published
literature. Any supplementary literature upon which any expert witness proposes to rely
shall be notified to all other parties at least one month before trial. No expert witness
shall rely upon any publications that have not been disclosed in accordance with this
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direction without the permission of the trial judge on such terms as to costs as he deems
fit.
13.
Experts shall, at the time of producing their reports, produce a CV giving details
of any employment or activity which raises a possible conflict of interest.
Experts’ Discussions
14.
Unless otherwise agreed by all parties’ solicitors, after consulting with the
experts, the experts of like discipline for the parties shall discuss the case on a without
prejudice basis by
2012. (Usually 8 weeks after the exchange of reports).
Discussions between experts are not mandatory. The parties should consider, with their
expert, whether there is likely to be any useful purpose in holding a discussion and
should be prepared to agree that no discussion is in fact needed.
(a)
The purpose of the discussions is to identify:
(i)
The extent of the agreement between the experts;
(ii)
The points of disagreement and short reasons for disagreement;
(iii)
Action, if any, which may be taken to resolve the outstanding points of
disagreement;
(iv)
Any further material points not raised in the Agenda and the extent to
which these issues are agreed;
(b)
Unless otherwise agreed by all parties’ solicitors, after consulting with the
experts, a draft Agenda which directs the experts to the remaining issues
relevant to the experts’ discipline, as identified in the statements of case shall be
prepared jointly by the Claimant’s solicitors and experts and sent to the
Defendant’s solicitors for comment at least 35 days before the agreed date for
the experts’ discussions;
Claimants’ solicitors and counsel should note the obligation to prepare the draft Agenda
jointly with the relevant expert. Experts should note that it is part of their overriding duty
to the court to ensure that the Agenda complies with the following direction.
The use of agendas is not mandatory. Solicitors should consult with the experts to
ensure that agendas are necessary and, if used, are reasonable in scope. The
agenda should assist the experts and should not be in the form of leading
questions or hostile in tone. An agenda must include a list of the outstanding
issues in the preamble.
[Note : The preamble should state: the standard of proof : the Bolam test : remind the
experts not to attempt to determine factual issues : remind them not to stray outside their
5
field of expertise and indicate the form of the joint statement. It will also be helpful to
provide a comprehensive list of the materials which each expert has seen, perhaps in
the form of an agreed supplementary bundle (it is assumed that experts will have been
provided with the medical notes bundle)]
(c)
The Defendants shall within 21 days of receipt agree the Agenda, or propose
amendments;
(d)
Seven days thereafter all solicitors shall use their best endeavours to agree the
Agenda. Points of disagreement should be on matters of real substance and not
semantics or on matters the experts could resolve of their own accord at the
discussion. In default of agreement, both versions shall be considered at the
discussions. Agendas, when used, shall be provided to the experts not less than
7 days before the date fixed for discussions.
[Where it has been impossible to agree a single agenda, it is of assistance to the experts
if the second agenda is consecutively numbered to the first, i.e. if the first agenda has 16
questions in it, the second agenda is numbered from 17 onwards]
15.
Unless otherwise ordered by the Court, or unless agreed by all parties,
including the experts, neither the parties nor their legal representatives may attend
such discussions. If the legal representatives do attend, they should not normally
intervene in the discussion, except to answer questions put to them by the experts or to
advise on the law; and the experts may if they so wish hold part of their discussions in
the absence of the legal representatives.
16.
A signed joint statement shall be prepared by the experts dealing with (a) (i) – (iv)
above. Individual copies of such statements shall be signed by the experts at the
conclusion of the discussion, or as soon thereafter as practicable and provided to the
parties’ solicitors within 7 days of the discussions.
17.
Experts give their own opinions to assist the court and should attend discussions
on the basis that they have full authority to sign the joint statement. The experts should
not require the authorisation of solicitor or counsel before signing a joint statement.
[Note: This does not affect Rule 35.12 which provides that where experts reach
agreement on an issue during their discussions, the agreement shall not bind the parties
unless the parties expressly agree to be bound by the agreement]
18.
If an expert radically alters his or her opinion, the joint statement should include a
note or addendum by that expert explaining the change of opinion.
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19.
Experts instructed by the parties in accordance with this and any subsequent
Order shall be provided with a copy of the Order by the instructing party within 7 days
after it is sealed, or at the time of instruction whichever is the later.
Schedules and periodical payments
20.
Claimant do serve a final Schedule of loss and damage costed to the date of trial
by
2012.
21.
The Defendant do serve a Counter-Schedule by
2012.
22.
The parties do set out their respective positions on the periodical payment of
damages in the Schedule and Counter-Schedule of loss. [or, The periodical payment of
damages is not appropriate to this case.]
Periodical Payments. Parties should, at the first CMC, be prepared to give their
provisional view as to whether the case is one in which the periodical payment of
damages might be appropriate.
Schedules. Parties are encouraged to exchange Schedules in a form which enables the
Counter schedule to be based on the Claimant’s Schedule i.e. by delivering a disk with
the hard copy, or by sending it as an e-mail attachment.]
Trial Directions
23.
The Claimant’s Solicitors do by
2012 apply to Queen’s
Bench Judges’ Listing in London / [the Listing Officer in the venue] for a listing
appointment for a trial period for hearing within the trial window and give notice of the
appointment to the Defendant. Pre-trial check lists to be filed as directed by Queen’s
Bench Judges’ Listing.
Mode of trial: Judge alone; London; Category [Usually] B ; time estimate
days.
Trial window:
[Certified fit for High Court Judge if available].
Trial Directions
The Claimant will usually be directed to apply to the Queen’s Bench Judges’ Listing for a
listing appointment no later than 6 weeks after the CMC.
The Queen’s Bench Judges’ Listing, in order to maintain the necessary degree of
flexibility for listing, will give a ‘trial period’ rather than a fixed date, but, in order to
7
accommodate the parties’ need for certainty as to dates for experts to attend, will, if an
approach is made closer to the beginning of the trial period, confirm the date for the trial
to begin as the first day of the trial period.
The trial period will usually be directed to begin at least 2 clear months after the last
event besides ADR – this is to allow for ADR.
In relatively modest claims ( in term of quantum), the Master may direct:
“If the parties reach agreement upon breach of duty and causation, the parties
are to immediately restore the case before the Master so that alternative
directions on the assessment of damages may be considered.”
24.
Parties do agree the contents of the trial bundle and exchange skeleton
arguments not less than 7 days before the hearing. Claimant to lodge the skeleton
arguments and the Trial bundle under PD 39.3
Trial Bundles
Note: the object is to ensure that all the relevant material is provided at one time to the
Clerk of the Lists to pass to the trial judge. The PD sets out both the contents of the
bundle and the time when it must be lodged.
Alternative Dispute Resolution
25.
At all stages the parties must consider whether the case is capable of resolution
by ADR. Any party refusing to engage in ADR by
2012 [a date usually about 3
months before the trial window opens] shall, not less than 28 days before the
commencement of the trial, serve a witness statement, without prejudice save as to
costs, giving reasons for that refusal. Such witness statement must not be shown to the
trial judge until the question of costs arises.
26.
Such means of ADR as shall be adopted shall be concluded not less than 35
days prior to the trial.
[‘ADR’ includes ‘round table’ conferences, at which the parties attempt to define and
narrow the issues in the case, including those to which expert evidence is directed; early
neutral evaluation; mediation; and arbitration. The object is to try to reduce the number
of cases settled ‘at the door of the Court’, which are wasteful both of costs and judicial
time.]
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Further CMC etc
27.
There be a further CMC on
2012 at
am/pm; Room
E118/E112; time estimate 30 minutes. This hearing may be vacated by consent provided
that all directions have been complied with; no further directions are required; and the
Master is given reasonable notice.
28.
Permission to restore.
[Note: A party may request the restoration of a CMC or application by letter or e-mail to
the assigned Master. If possible the Master should be provided with an agreed list of
dates to avoid. Where the application is urgent and the time estimate is no more than 30
minutes, the Master will endeavour to list a hearing at 10.00am as soon as possible.
Applications estimated to take more than 30 minutes should be applied for as private
room appointments in the usual way.]
[Both Masters are willing, in appropriate cases, to hear applications by telephone link,
provided sufficient notice is given directly to the Master concerned and the relevant
papers are provided in advance. E-mails are an acceptable means of communication,
provided that they are copied to all parties.]
[NOTE. :
The Court File in cases proceeding before the Masters will not routinely
be placed before the Master. Parties wishing for it to be produced should notify the Case
Management Section FIVE CLEAR DAYS in advance of the appointment. In all other
cases parties should bring with them copies of any filed documents upon which they
intend to rely.]
29.
Costs in case [Or other costs order sought].
30.
Claimant to draw and file the order by
Defendant (or Claimant to serve sealed order by
Dated the
9
2012
2012).
and
serve
the
DRAFT ORDER
See over
IN THE HIGH COURT OF JUSTICE
Claim No. HQ012X0ZZZZ
QUEEN’S BENCH DIVISION
MASTER [ROBERTS / COOK]
BETWEEN
ABC
Claimant
And
DEF NHS TRUST
Defendant
ORDER
UPON a Case Management Conference
[AND UPON the Claimant’s / Defendant’s application issued on
2012]
AND UPON hearing solicitor/counsel for the Claimant and solicitor/counsel for the
Defendant
IT IS ORDERED that
1.
The case do remain on the Multi-track.
2.
The Defendant do retain and preserve safely the original clinical notes relating to
the claim pending the trial. The Defendant do give facilities for inspection by the
Claimant, the Claimant’s legal advisers and experts of the said original notes upon 7
days written notice to do so.
10
3.
Legible copies of the medical (and educational) records of the Claimant /
Deceased / Claimant’s Mother are to be placed in a separate paginated bundle at the
earliest opportunity by the Claimant’s Solicitors and kept up to date. All references to
medical notes in any report are to be made by reference to the pages in that bundle.
4.
The parties do retain all electronically stored documents relating to the claim.
5.
A preliminary issue shall be tried between the Claimant and the Defendant as to
whether or not the Defendant is liable to the Claimant by reason of the matters alleged in
the Particulars of Claim and, if so, whether or not any of the injuries pleaded were
caused thereby; if any such injuries were so caused, the extent of the same.
6.
There be standard disclosure [on the preliminary issue] [limited to quantum] by
list by
2012. Any initial request for inspection or copy documents is to be made
within 7/14 days of service of the lists.
7.
Signed and dated witness statements of fact in respect of breach of duty and
causation [and quantum] shall be simultaneously exchanged by
2012.
Civil
Evidence Act notices are to be served by the same date. The witness statements of all
concerned with the treatment and care of the Claimant at the time of the matters alleged
against the Defendant shall be served under this paragraph.
8.
Signed and dated witness statements of fact in respect of quantum, condition
and prognosis shall be served by
2012 (Claimant) and
2012 (Defendant).
Civil Evidence Act notices are to be served by the same date.
9.
Each party has permission to rely on the evidence of a single joint expert in the
following fields: [state the disciplines; and identify the issues]. The experts are to be
instructed by
2012 and the joint expert is to provide his report to the instructing
parties by
2012. In case of difficulty, the parties have permission to restore
before the Master.
10.
In respect of breach of duty and causation, each party has permission to rely on
the evidence of an expert in the following fields: [state the disciplines; and the names of
the experts, where known]; permission being given to call the said experts on matters
remaining in issue. The reports of the said experts are to be simultaneously exchanged
by
2012.
11.
In respect of quantum, condition and prognosis, each party ([where there are
several defendants] the Defendants acting jointly, unless otherwise directed) has
permission to rely on the evidence of an expert in the following fields: [state the
disciplines; and the names of the experts, where known]; permission being given to call
11
the said experts on matters remaining in issue. The reports of the said experts are to be
served by:
Claimant:
2012;
Defendant(s):
2012.
12.
Any unpublished literature upon which any expert witness proposes to rely shall
be served at the same time as service of his report together with a list of published
literature. Any supplementary literature upon which any expert witness proposes to rely
shall be notified to all other parties at least one month before trial. No expert witness
shall rely upon any publications that have not been disclosed in accordance with this
direction without the permission of the trial judge on such terms as to costs as he deems
fit.
13.
Experts shall, at the time of producing their reports, produce a CV giving details
of any employment or activity which raises a possible conflict of interest.
14.
Unless otherwise agreed by all parties’ solicitors, after consulting with the
experts, the experts of like discipline for the parties shall discuss the case on a without
prejudice basis by
2012.
Discussions between experts are not mandatory. The parties should consider, with their
expert, whether there is likely to be any useful purpose in holding a discussion and
should be prepared to agree that no discussion is in fact needed.
(a)
The purpose of the discussions is to identify:
(i)
The extent of the agreement between the experts;
(ii)
The points of disagreement and short reasons for disagreement;
(iii)
Action, if any, which may be taken to resolve the outstanding points of
disagreement;
(iv)
Any further material points not raised in the Agenda and the extent to
which these issues are agreed;
(b)
Unless otherwise agreed by all parties’ solicitors, after consulting with the
experts, a draft Agenda which directs the experts to the remaining issues
relevant to the experts’ discipline, as identified in the statements of case shall be
prepared jointly by the Claimant’s solicitors and experts and sent to the
Defendant’s solicitors for comment at least 35 days before the agreed date for
the experts’ discussions;
The use of agendas is not mandatory. Solicitors should consult with the experts to
ensure that agendas are necessary and, if used, are reasonable in scope. The
agenda should assist the experts and should not be in the form of leading
12
questions or hostile in tone. An agenda must include a list of the outstanding
issues in the preamble.
(c)
The Defendants shall within 21 days of receipt agree the Agenda, or propose
amendments;
(d)
Seven days thereafter all solicitors shall use their best endeavours to agree the
Agenda. Points of disagreement should be on matters of real substance and not
semantics or on matters the experts could resolve of their own accord at the
discussion. In default of agreement, both versions shall be considered at the
discussions. Agendas, when used, shall be provided to the experts not less than
7 days before the date fixed for discussions.
15.
Unless otherwise ordered by the Court, or unless agreed by all parties,
including the experts, neither the parties nor their legal representatives may attend
such discussions. If the legal representatives do attend, they should not normally
intervene in the discussion, except to answer questions put to them by the experts or to
advise on the law; and the experts may if they so wish hold part of their discussions in
the absence of the legal representatives.
16.
A signed joint statement shall be prepared by the experts dealing with (a) (i) – (iv)
above. Individual copies of such statements shall be signed by the experts at the
conclusion of the discussion, or as soon thereafter as practicable and provided to the
parties’ solicitors within 7 days of the discussions.
17.
Experts give their own opinions to assist the court and should attend discussions
on the basis that they have full authority to sign the joint statement. The experts should
not require the authorisation of solicitor or counsel before signing a joint statement.
18.
If an expert radically alters his or her opinion, the joint statement should include a
note or addendum by that expert explaining the change of opinion.
19.
Experts instructed by the parties in accordance with this and any subsequent
Order shall be provided with a copy of the Order by the instructing party within 7 days
after it is sealed, or at the time of instruction, whichever is the later.
20.
by
Claimant do serve a final Schedule of loss and damage costed to the date of trial
2012.
21.
The Defendant do serve a Counter-Schedule by
13
2012.
22.
The parties do set out their respective positions on the periodical payment of
damages in the Schedule and Counter-Schedule of loss.
23.
The Claimant’s Solicitors do by
2012 apply to Queen’s
Bench Judges’ Listing in London / [the Listing Officer in the venue] for a listing
appointment for a trial period for hearing within the trial window and give notice of the
appointment to the Defendant. Pre-trial check lists to be filed as directed by Queen’s
Bench Judges’ Listing.
Mode of trial: Judge alone; London; Category [Usually] B ; time estimate
Trial window:
days.
[Certified fit for High Court Judge if available].
24.
Parties do agree the contents of the trial bundle and exchange skeleton
arguments not less than 7 days before the hearing. Claimant to lodge the skeleton
arguments and the Trial bundle under PD 39.3
25.
At all stages the parties must consider whether the case is capable of resolution
by ADR. Any party refusing to engage in ADR by
2012 [a date usually about 3
months before the trial window opens] shall, not less than 28 days before the
commencement of the trial, serve a witness statement, without prejudice save as to
costs, giving reasons for that refusal. Such witness statement must not be shown to the
trial judge until the question of costs arises.
26.
Such means of ADR as shall be adopted shall be concluded not less than 35
days prior to the trial.
27.
There be a further CMC on
2012 at
am/pm; Room
E118/E112; time estimate 30 minutes. This hearing may be vacated by consent provided
that all directions have been complied with; no further directions are required; and the
Master is given reasonable notice.
28.
Permission to restore.
29.
Costs in case [Or other costs order sought].
30.
Claimant to draw and file the order by
Defendant (or Claimant to serve sealed order by
Dated the
14
2012
2012).
and
serve
the
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