MRG Paper 7
Medical Negligence Claims
Legal Processes in Scotland and England
At the first meeting of the “No Fault Compensation Review Working Group” it was
agreed that it might be helpful to look at any differences in the legal processes in
place in Scotland and England for dealing with medical negligence claims. This paper
looks at the legal process for dealing with medical negligence claims in both Scotland
and England. The paper is in two parts, the first is a comparison of certain aspects of
the legal process in both countries compiled with the assistance of Scottish and
English lawyers from MDDUS and the second is a paper from Lauren Sutherland, a
member of the Working group. Both should be read in conjunction with Prof Norrie’s
helpful paper on the nature of medical negligence itself.
It is worth noting that the most significant review of the Civil Justice System in
Scotland for a generation is being undertaken by Lord Gill and wide ranging reforms
are anticipated. Brief information on the scope of that review is shown in Appendix 1.
England and Wales
Scotland
Pre-Action Protocol
Pre-Action Protocols
The system is run according to the Civil
Procedure Rules - CPR. The English and
Welsh system has a heavy lending to
investigation at an early stage in precommencement of proceedings.
Unlike in England such protocols are not
compulsory in Scotland although they are
being considered within the context of
Lord Gill's Civil Justice Review which has
not been made public yet. Comment on
this aspect is perhaps premature until we
see how this area is likely to be
reformed. Many defenders adopt a
practice of disclosing supportive expert
opinion to the other side. Many pursuer's
firms will also intimate their report at an
early stage so there is an ad hoc practice
of disclosure but it is by no means wide
spread. Some pursuer's also ask to
precognosce the defender. This is a
limited form of the exchange of
statements. Such requests are not
always acceded to but written questions
are sometimes answered as a substitute.
Some pursuer's also suggest joint reports
which again are considered and in cases
where liability is not going to be an issue,
can be instructed.
A full and detailed letter of claim is
served upon the Defendant setting out
allegations of breach of duty, the
Claimant's case on causation and the
detailed factual analysis of events.
Occasionally the letter of claim is
accompanied by a Part 36 offer (which is
an offer to settle the case at this very
early stage). Very occasionally an expert
report is also served at this stage to
assist the Claimant's claim.
The Defendant then has 3 months to
serve a letter of response, during which
time he is to review with expert opinion
the allegations on breach of duty in
addition to those on causation and if
necessary either accept, reject or put
forward a new Part 36 offer to settle and
also occasionally serve his own expert
A formalised pre action protocol does not
exist in Scotland although this is likely to
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report if this is of assistance to the
Defendant's case.
change once the Gill Report is published.
The existing Professional Negligence
protocol is in our experience not utilised
for Medical Negligence cases. A limited
practice already exists between some
solicitors
Often this process takes longer than the
3 months required as the Claimant must
also serve upon the Defendant medical
records for investigation to be completed
and this can take up a large proportion of
the 3 month period. As a result there is
often a period of negotiation whilst
detailed investigations continue. A Court
will always look favourably upon both a
Claimant and Defendant who investigate
cases at this early stage in the interests
of saving costs.
(A timetable is shown in Appendix 2)
Commencing Proceedings
Commencing Proceedings
Proceedings are commenced on a Claim
Form which is the official start of
proceedings. These are served along
with Particulars of Claim (detailing the
claim).
In Scotland an action can be raised in
either the Sheriff Court or the Court of
Session. There is no bar on raising
expensive and complex claims in the
Sheriff Court. The privative limit in the
Court of Session is £5000. Choice of
court is a matter of preference for the
Pursuer. Many smaller local firms choose
to raise proceedings in the local sheriff
court. Edinburgh pursuer firms are more
likely to raise actions in the Court of
Session. The main drawback with the
sheriff court is that it is not possible to
have a long case heard over concurrent
weeks. It sometimes takes over a year
for the case to be heard, spread out over
many weeks and days. Whilst it may take
longer for a case to reach proof in the
Court of Session it can be heard over the
course of many weeks.
A Defendant is then to serve an
Acknowledgment of Service within 14
days of service of the Particulars of Claim
and a Defence is due within 14 days
thereafter (or 28 days from service of the
Particulars of Claim). An extension of
time for the defence can sometimes be
obtained – up to 3 months.
The privative limit for raising actions in
the Court of Session is likely to alter once
the Gill reforms are public with it being a
possibility that actions beneath the £100k
threshold will require to be raised in the
Sheriff Court. Rules in the Sheriff Court
have been amended to cater for pre trial
meetings and exchange schedules of
damages in the context of a fixed
timetable which is issued at the
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beginning of the action. This currently
takes place in Chapter 43 rules of the
Court of Session in relation to personal
injury actions. Many complex medical
negligence actions are remitted from this
chapter as the timescales are too short
for the investigation and preparation of
complex cases. Cases which are remitted
out of Chapter 43 proceed as ordinary
actions without the benefit of provision
for pre trial meetings and exchanges of
schedules. The Rules Committee are
thought to be looking at this currently
which would enhance the current system
In the Sheriff Court, as from November
2009, the rules have been amended to
adopt the chapter 43 principles. Medical
Negligence cases can be excluded from
this regime but it is hoped that the
Sheriff Court will look to adopt some
aspects of the reforms for remitted
cases. Such rules could provide for the
earlier disclosure of witnesses and
productions such as expert opinions, the
exchange of schedules of damages and
the meeting of both parties in advance of
the trial. There is of course nothing to
stop solicitors agreeing to adopt such an
approach in the interests of narrowing
the issues
Evidential Proceedings
Evidential Proceedings
The process is one of awareness and
openness, and starts with disclosure
under the Civil Procedure Rules 31.6
where both parties must disclose all
documents which adversely affect or
support his own or the opponent’s case.
Disclosure is an on-going commitment
and leads to inspection of documents
usually 14 days thereafter. This enables
early and detailed investigations to
continue.
We do not have a comparable system to
England in so far as disclosure is
concerned. As mentioned above reports
are usually lodged as productions a
month prior to the proof but this is not
always the case, with late reports being
commonplace. Solicitors do meet to
discuss cases and exchange reports but
this is ad hoc. Experts are sometimes
asked to discuss the case with their
opposing expert but again this is not
commonplace. This aspect of the
preparation of the case depends very
much on the practice of the solicitors
involved as opposed to the rules adopted
in England & Wales. It should be
highlighted that the system of written
pleadings in Scotland requires fair notice
It is at this stage and once the Defence
has been filed that the Court will allocate
the case to a Judge who, along with the
parties, Orders Directions and a fully
managed "case management system" of
the case ensues with the exchange of
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documents in the following order:
a)
Factual witness statements
according to CPR 32 (those that are
to be relied upon at trial are to be
exchanged at this early stage).
b)
Approximately 6 weeks thereafter
expert reports on both the issues of
breach of duty and separately on
the issues of causation, and also
separately those on the issue of
condition and prognosis are to be
served. Occasionally the Court will
also direct that the parties are to
use a joint expert in a certain
instance if this is felt to assist the
smooth running of the case.
c)
Consent Orders are sometimes
agreed at this stage to extend the
time for service of documents if
those parties can agree.
d)
Agendas will be agreed between
the parties. The experts from each
side of the same discipline will
meet to discuss the Agenda of
outstanding issues between them
and produce a joint report for the
Court. Once this has been served
upon the Court there is a final
attempt at mediation or ADR
(Alternative Dispute Resolution)
usually in the format of a Round
Table Meeting to try and settle or
occasionally mediation with a
mediator, but which tends to be
relatively costly.
to be given and this is the explanation
for the more limited disclosure of reports
in Scotland.
Should all these steps complete with
both parties still entrenched in their
positions then the matter moves forward
to the listing of trial.
Funding
Funding
Funding is a key issue to access to
justice.
Legal aid is of course available in
Scotland but is cumbersome and adds to
the delays in preparing cases as each
stage of investigation depends upon
approval by the Board and requires to be
supported by an expert report and
Legal Aid systems are in place for those
who qualify in both countries.
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Conditional Fee Agreements are easily
accessed in England and we understand
they are becoming more popular in
Scotland.
submission. Long delays are incurred as
pursuers wait for experts to provide
reports and then for the Board to agree
to the next stage. Many pursuers
proceed on a speculative basis with their
solicitors funding the action on the basis
that they will be paid their expenses by
the defender at the conclusion of the
action. In return solicitors and counsel
are entitled to claim an enhanced fee for
the "risk" they have taken in supporting
the action. One pursuer’s firm operates
their own funding and insurance scheme
which funds the action and meets
adverse costs. By comparison to England
the costs involved are substantially
lower.
After the Event Insurance Premiums are
readily available in England providing
cost protection for the Claimant.
Insurance premiums increase
dramatically at the various stages of the
streamlined system within the English set
up, which it is argued assists in
settlement at an early rather than late
stage due to the cost consequences of
continuing.
By comparison costs appear to be higher
than those in Scotland.
It is clear that there are some aspects of the English system which would enhance
the system in Scotland. It is hoped that Lord Gill's reforms will address many of
those issues in detail.
Prof G C A Dickson
CEO
MDDUS
September 2009
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APPENDIX 1
Civil Courts Review – The Gill Review
On 12 February 2007 the then Minister for Justice announced that the Lord Justice
Clerk, Lord Gill, was to head a review of the civil courts
The review began its work on 2 April 2007. The formal remit is:
to review the provision of civil justice by the courts in Scotland, including their
structure, jurisdiction, procedures and working methods, having particular regard to

the cost of litigation to parties and to the public purse;

the role of mediation and other methods of dispute resolution in relation to
court process;

the development of modern methods of communication and case management;
and

the issue of specialisation of courts or procedures, including the relationship
between the civil and criminal courts;
and to report within 2 years, making recommendations for changes with a view to
improving access to civil justice in Scotland, promoting early resolution of disputes,
making the best use of resources, and ensuring that cases are dealt with in ways which
are proportionate to the value, importance and complexity of the issues raised.
Topics to be considered by the Review will include:

the disproportionate cost of litigation, particularly in cases of lower financial
value

the potential benefits of specialised courts or tribunals and the balancing of
demands between civil and criminal business

the potential benefits of a greater use of case management

the current structure and jurisdictional limits of the civil courts

the scope for mediation as a means of resolving disputes

streamlining of court procedures
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APPENDIX 2
Civil Procedure Rules
English Legal System
Claimant
Defendant
Pre-Commencement
Acknowledge Letter of Claim and reply
with Letter of Response within 3 months
of service.
Part 36 Settlement Offers?
Letter of Claim
Part 36 Settlement Offers?
Commencement of Proceedings
Claim Form (CPR Part 16)
Particulars of Claim (CPR Part 16)
Acknowledgement of Service (CRP Part
10) within 14 days of Particulars of
Claim
Defence (CPR Part 15) within 14 days of
Acknowledgement of Service or 14 days
of the Particulars of Claim if no
Acknowledgement of Service is served.
Counterclaim (CPR Rule 20.4) if
required or Reply to Defence
Consideration of Co-defendants
indemnity or contribution
Allocation of Cases
Allocation Questionnaire – Draft Directions agreed if possible
Case Management Conference – Court Timetable
Disclosure (CPR Part 31) – all documents that adversely effect or support either the
Claimants or the Defendants case are to be disclosed.
Inspection – all documents disclosed may be inspected.
Privilege – Documents which are protected from inspection are documents
containing legal advice (legal advice privilege) or that come into existence
after litigation was commenced or contemplated (litigation privilege)
Evidential Proceedings
Simultaneous Exchange Factual Witness Statements
Exchange Expert Reports to be used at Trial
Expert Meetings – Joint Reports produced for Court of outstanding issues
Pre-Trial Checklist – Listing Questionnaire of final issues to be dealt with
Pre-trial
Alternative Dispute Resolution (Round Table Meeting)
Trial
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The Scottish System
Lauren Sutherland
1. Funding Issues
There are significant differences in relation to funding between Scotland and
England both pre and post court action. This has an effect on the speed with
which a case can be investigated and either disposed of or litigated. The
English system is clearly preferable. Specific examples are;
1.1. Legal Aid- the Legal Aid provisions are different in Scotland and the
amount of money provided for initial investigation is significantly different.
Choices of experts in cases are governed by cost consideration namely who
is the cheapest expert, rather than who is the correct expert. Rules which
require one expert to be instructed at a time when initially investigating
cases cause significant delay. Rates for work done are poor with the result
that many practitioners are now refusing to continue with Legal Aid work.
This is a significant access to justice issue.
1.2. Specialist Practitioners- Legal Aid in Scotland has no rules in relation to
Legal Aid only being available to specialist practitioners as in England. This
leads to inexperienced practitioners taking on cases. The effect is that cases
which should not be run are run and cases which are good cases are often
undersettled or not properly investigated. This also promotes delay. Rules in
relation to specialist practitioners have been shown to be beneficial.
1.3. Speculative actions- Few medical negligence actions are run on a
speculative basis due to costs in investigation of the claims.
1.4.Insurance funding- this is available in England and recoverable. This is not
easily accessible at reasonable cost in Scotland.
1.5. Costs of Fatal Accident Inquiry- the costs of being represented at a Fatal
Accident Inquiry are not currently available to a family. In England costs are
recoverable in respect of representation at an Inquest. The effect is that a
family has difficulty being properly represented. A Hospital Trust/Health
Board will usually be represented as will a Nurse by The Royal College or
other Nursing unions and a doctor. If a family had proper opportunity to be
properly represented at an Inquiry it may be that there would be no need
for subsequent court action.
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2. Expert Witnesses
There are significant differences between the two jurisdictions in relation to
expert witnesses. It could be argued that in some aspects the English system
has gone too far in this area but there are clear deficiencies in the current
Scottish procedure. Specific examples are;
2.1. Meetings of Experts- There is no provision in Scotland for meeting of
Expert Witnesses, although this could be done on a voluntary basis. The
English see an advantage in having these meetings between experts,
although an agenda is drafted by the Lawyers for the meeting. The idea
behind the meetings is to focus the issues in the case. It could be said that
the duty of the lawyers in such cases is in fact to be able to focus the
medical issues following discussion and consultation with their medical
experts. It could be argued that the Scottish system of pleading could
facilitate focusing of issues by lawyers without the necessity of the
additional cost of holding expert meetings.
2.2. Single Joint experts- There is no provision in Scotland for the instruction of
joint experts in a case although I have experience of this being done in
relation to pension loss and employment issues. Clearly there are cost
benefits in doing so. It could be argued that this could not appropriately be
extended to issues of negligence and causation. At present there does
appear to be disparity in reports from some quantum experts. I have seen
Care expert reports with vastly different figures and this could cause a
claimants agent to be concerned when instructing a single joint expert on
such a vital aspect of the case.
2.3. Exchange of Expert Reports- There is in Scotland no provision for
compulsory exchange on expert reports in an Ordinary action proceeding in
the Court of Session. In practice reports will be exchanged prior to a case
proceeding to court but it usually is late in the day. The view of the experts
should be reflected in the pleadings but often this is not done. Late
exchange of expert reports leads to unnecessary delay and often increased
costs due to late investigations being required when a report is exchanged.
Theoretically a case could proceed in court without an expert report being
lodged. This is a practice which does require to be changed with a rule
requiring the lodging of expert reports by a certain specific time in the
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proceedings, preferably prior to the closing of the Record. I have experience
of experts instructed in cases a matter of weeks before a case proceeds to
court and a new defence being introduced at that stage and clearly that is
not beneficial to any party involved in the process.
2.4. Expert witness access to witness statements and documentation. In
England witness statements are exchanged. This does not happen in
Scotland and often in fact no statements are produced and the first time the
expert is aware of the full factual circumstances of a case is when he sits in
court to hear the factual medical and nursing witnesses (including the
doctor nurse or other practitioner who is sued). Due to the fact that
witnesses statements are not obtained at an early stage and there are often
difficulties in obtaining essential documentation on behalf of a claimant an
expert witness can be instructed with incorrect or partial information. The
view expressed is therefore defective. This can lead to delay in investigation
of cases and also cases being pursued that should not be pursued. This is a
clear deficiency in the current Scottish system. There is also an increased
cost in requiring an expert witness to sit in court to listen to evidence of
factual witnesses.
2.5. Leading experts in court. In England an expert is not lead in court in the
same way as in England. In Scotland the expert will give evidence in chief
on his opinion and then be subject to cross examination and then reexamination. On one view this leads to increased costs with experts being in
the witness box for lengthy periods. Another view is that this is necessary to
properly test the view and the opinion of the expert. There is a lack of focus
of areas where the experts are really in dispute due to a combination of lack
of information (statements/documentation) and agreement between the
parties. It may be that the current Scottish system of advocacy is acceptable
subject to these issues being addressed.
3. Access to Witness Statements and Documentation
In Scotland, unlike England there is a lack of access to factual witnesses and
information required to enable a case to be properly investigated. This area
does require to be addressed. Specific points would be;
3.1.
Witness Statements- As stated above there are significant problems in
Scotland accessing important witness statements. The current practice
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in Scotland is to request witness statements from the defenders on
behalf of a claimant. A number of different approaches appear to have
been taken in cases. One approach is to refuse precognition facilities
but to agree to answer written questions, another is to refuse
completely without reason, and another is to say that statements will be
given after the adjustment of the written pleadings are complete since
the doctor is entitled to know the case against them before they answer
any questions. Responses to questions are also restricted by legal
representatives, often without reason. Frequently staff will prepare
written statements following an adverse incident and requests to
receive these statements are usually refused on the basis that they are
prepared in contemplation of litigation. The effect is to delay
investigation of cases. It may also mean that cases are pursued
inappropriately. This is a clear deficiency in the Scottish system and
there is no rationale for continuing with the current system. Exchange
of witness statements at an early stage in the case should be the rule.
3.1.1. Access to Internal Inquiry reports and Policy statements Documentation
in relation to any internal inquiry following an incident are usually not
produced. Clearly it is relevant and important to a claimant to have
access to such documentation. Equally it is recognised that it is
important to be able to review and learn from adverse incidents fully
and critically without fear that this will be used in a subsequent
litigation. If an internal inquiry has focused areas of deficiency it would
be helpful for claimants to have information in relation to this at an
early stage. It would also be helpful if on occasion they were able to
participate in such inquiry as it is often the case that they can provide
an alternative factual set of circumstances.
4. Court/Dispute resolution processes
4.1
Court intervention- Actions raised in the Court of Session under the
Ordinary procedure are in fact at present subject to a degree of court
monitoring. In larger cases it is now routine to have the case call By Order
of the Court to discuss issues between the parties, and attempts made to
resolve the dispute and focus the issues. The courts have been pro active
in forcing parties to lodge documentation at an early stage and will expect
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parties to have held meetings in an attempt to resolve the dispute. This is
working well at present although it could be argued this could be dealt
with by a court report at certain pre determined stages in the procedure
rather than requiring appearances leading up to the case. It would also be
useful to bring forward the first time the court intervenes in this way to 6
months prior to the court hearing to focus issues at an earlier stage.
4.1.
Joint Meetings- In Scotland it is now usual to have a Joint meeting
between the parties prior to cases proceeding to proof. This is not required
in terms of the Ordinary procedure but is invariably done by agreement
between parties. This practice has been taken from the pre trial meeting
procedure introduced recently and works extremely well.
4.2.
Fast Track actions few Medical Negligence actions proceed under the
fast track. There is usually a defenders motion to remit the case if it is
raised under fast track and many judges consider that a professional
negligence claim is not appropriately raised under fast track
4.3.
Jury Trial- There is an option for Jury Trial in professional negligence
cases in Scotland. Indeed Hunter v Hanley was a jury trial. This is an
important right for a claimant. This does not exist in England. I have had
one Medical negligence jury trial that has proceeded very effectively and a
number I have settled.
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