Image © Tero Vesalainen
All RTA claims worth less than £5,000 will now go through the new claims portal designed to be used by unrepresented litigants and, in theory, result in quicker settlements with insurers.
https://www.officialinjuryclaim.org.uk/
This follows recent updates to the Civil Procedure Rules as summarised below on gov.uk:
These Rules amend the Civil Procedure Rules 1998 (S.I. 1998/3132). The amendments give effect to, or are consequential upon—
(a)changes to Part 26 of the Civil Procedure Rules regarding the allocation of personal injury claims arising from road traffic accidents which occur on or after 31st May 2021 to the small claims track and fast track;
(b)new Practice Direction 27B: Claims Under the Pre- Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents – Court Procedure; and
(c)the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (“the RTA Small Claims Protocol”).
Updated civil procedure rules and full explanatory note can be accessed below.
Read more: https://www.legislation.gov.uk/uksi/2021/196/contents/made
Personal Injury firm Minster Law has announced five-year deals under which it will act for customers of insurers esure Group and LV= in motor personal injury and other legal claims. The aim is to ‘simplify the claims journey’ with digital technology, including the portal introduced under the PI reforms.
Commenting for esure Group, Graham Hughes, Chief Claims Officer, said: “We were impressed by Minster Law’s appetite to look at motor claims differently and capability to provide a digital offering for our customers. We have a shared desire to support our customers at a stressful time. The recent reform in motor personal injury is an opportunity to ‘iron out’ poor practices and simplify the claims journey.”
The new claims portal is seeing a shift in the way lower value claims are being handled across both the PI and insurance industry.
Read more: https://www.minsterlaw.co.uk/news/
The Civil Justice Council’s report on compulsory alternative dispute resolution (ADR) was published in July.
In January 2021, the Master of the Rolls asked the Civil Justice Council to report on the legality and desirability of compulsory ADR.
The report concludes that mandatory (alternative) dispute resolution is compatible with Article 6 of the European Human Rights Convention (the right of access to a public trial) and is, therefore, lawful.
Chair of the Judicial/ADR Liaison Committee, Lady Justice Asplin DBE, concluded:
“We think that introducing further compulsory elements of ADR will be both legal and potentially an extremely positive development”.
“We would make three specific observations:
1) Where participation in ADR occasions no expense of time or money by the parties (as with answering questions in an online process as to a party’s willingness to compromise) it is very unlikely that the compulsory nature of the system will be controversial – as long as the ADR is otherwise useful and potentially productive.
2) Judicial involvement in ENE, FDR and DRH hearings is proving highly effective and these are of course available free to the parties. Again as long as they seem appropriate for the particular type of case being considered and can be resourced within the court system, we cannot see that compulsion in an even wider range of cases will be unacceptable.
3) We think that as mediation becomes better regulated, more familiar and continues to be made available in shorter, cheaper formats we see no reason for compulsion not to be considered in this context also. The free or low-cost introductory stage seems the least likely to be controversial. Above all, as long as all of these techniques leave the parties free to return to the court if they wish to seek adjudicative justice (as at present they do) then we think that the greater use of compulsion is justified and should be considered”.
In response to the report, the Master of the Rolls, Sir Geoffrey Vos, chair of the Civil Justice Council and Head of Civil Justice, said: “I am grateful to Lady Justice Asplin and the working group for this excellent report. They conclude that it is possible, where a court process remains available, lawfully to mandate (alternative) dispute resolution”.
Read more: https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf
If you are interested in training to become a Civil Mediation Council Accredited Mediator, then have a look at the Mediation courses available on the SpecialistInfo training page:
https://www.specialistinfo.com/a_ml_mediation.php
Speakers included the Keynote Address from Mr Justice Pepperall, High Court Judge and barrister member of the Civil Procedure Rule Committee and the chief architect of the 2015 reforms to Part 36, “A Judicial Perspective on Expert Evidence” and Master of Ceremonies, Professor Dominic Regan, Civil Litigation expert who spoke about “Vicarious liability for wrongdoing”.
In his second year speaking at the conference, Warren Collins, Partner at Penningtons Manches Cooper – international commercial/shipping practice that handles Claimant and Defendant PI work, and also Chief Assessor of Law Society PI Accreditation and Assessor for APIL Brain Injury and Spinal Cord Injury Specialist Accreditation, was very well received with his “Top Tips for Medical Experts”.
Covering a lot of information in his allotted time, including: Do I have the expertise and what am I letting myself in for; Roles and obligations – contents of report; Seeking Directions from Court; Depositions, Joint Discussions, Settlement Meetings and Going to Trial; Reputation, repeat business and getting paid.
Also highly rated by delegate feedback, Alexander Hutton QC, Hailsham Chambers, summarised “The Latest on the law of Consent to Medical Treatment”. Running through some recent important cases, including Montgomery, and covering application in new/novel/innovative treatments, duty to warn of departure from NICE Guidelines, and is a warning on the day of elective surgery sufficient?
Jeff Zindani LLB, MA Solicitor and Management Consultant, brought conference up to date on the “End of Whiplash?: The New Landscape for Low Value RTA Claims.”
Covering: Civil Liability Act 2018 (“CLA”)-Key Provisions; Definition of Whiplash and the Regulations; The Tariff Figures and a Reality Check; Exceptions; MEDCO; Market response and What Next?
Simon Hammond, Director of Claims Management NHS Resolution, spoke about the use of alternative dispute resolution in negligence claims in his talk entitled “The Opportunity for Change”, as well as touching on the pandemic response in healthcare with the Coronavirus Act 2020 and the Clinical Negligence Scheme for Coronavirus (CNSC).
Lionel Stride, Barrister, Temple Garden Chambers, discussed in more detail “Covid-19 in a medical negligence context”. His Key Topics included: Litigation risks faced by healthcare provers (hospitals and care homes); Non-delegable duty to provide ‘safe systems of work’; and Legal Defences.
Look out for articles in upcoming issues of Medico-Legal Magazine from Alex Hutton, Lionel Stride and Simon Hammond on these topics.
If you missed the event this year, then please visit the website where the 2021 recording and materials from all the speakers can still be downloaded, and early-bird tickets are already available for 2022:
Please contact craig.kelly@iconicmediasolutions.co.uk for further information if you are interested in sponsoring the programme or hosting a stand at the event next year in London on 28th June 2022.
The Getting It Right First Time (GIRFT) and NHS Resolution best practice guide for clinicians and managers was released in May.
The guide reports that, “As GIRFT clinical leads have visited trusts across England it has been clear that many clinicians and managers are unaware of the claims against their department.
“It is important that trusts recognise the direct link between clinical incidents, claims for compensation and their financial contribution to the Clinical Negligence Scheme for Trusts (CNST).”
The guide gives a recommended structure for learning from clinical negligence claims that should be led by trust legal departments, supported by clinicians and managers.
The application of GIRFT methodology in obstetrics and orthopaedics, for example the Maternity Incentive Scheme and the Early Notification scheme, has already helped to ensure that learning is shared across departments to improve safety and drive better patient outcomes.
The guide recommends, “Claims learning should have the same parity as learning from clinical incidents. It is a rich resource to help improve patient safety in addition to learning from complaints, incidents and inquests.”
GP Dr Zuber Bux appealed against the findings of the Medical Practitioners Tribunal and against the decision directing his erasure from the Medical Register in 2019. Mr Justice Mostyn dismissed his appeal agreeing that he dishonestly and deliberately wrote formulaic reports diagnosing food poisoning.
Dr Bux acted as an expert witness preparing medico- legal reports in respect of holiday sickness claims from a firm of solicitors in which his wife was a salaried partner. He gave deliberately false answers to questions posed to him as an expert witness and he made diagnoses without proper evidence and without identifying the existence of a range of opinions.
The High Court judge said: “...he produced expert medical reports on an industrial scale.” Dr Bux wrote nearly 700 reports between 2016 and 2017 generating over £100,000 for Bux Incorporated Ltd, of which he held 55% of the shares and his wife 45%.
This case highlights the need for experts to always remember their duty is to the court, to be honest and not to put self-interest first.
Read more: https://www.bailii.org/ew/cases/EWHC/Admin/2021/762.html
There are certain duties of care that cannot be outsourced onto anyone else. These are non-delegable duties of care, which can be found in statute or at common law.
In a clinical setting, following the NHS Act 2006, it is now well-established that claimants can sue a Trust or GP Surgery directly for the negligent acts of its practitioners. However, this is not necessarily the case in claims involving dental practices, where the alleged negligent acts were performed by associate dentists, who were liable to face civil proceedings rather than the dental practice itself.
In this case, however, Judge Harrison, sitting at Cardiff County Court, held that Mr Croad, a former dentist who had been retired for 20 years and who had sold his practice many years before the litigation commenced, owed a non-delegable duty of care to the Claimant at the material time.
The Claimant had been a registered patient at Mr Croad’s former practice, where she had been treated many times over several years. She was always given an appointment and seen by whichever associate dentist was available at the time.
After some bridgework treatment in 2011-2012 resulted in swelling and pain 4 years later, she sought a second opinion at another practice, and was informed that the bridge that she had received was of very low quality and that the Claimant should sue the dentist who performed it. The Claimant then sued Mr Croad.
Mr Croad accepted that he was the ‘Provider’ of the dental services for the purposes of his contract with the local health board, and that he had an obligation to ensure that the dental services provided were safe and met the requisite standard. The Defendant met his contractual obligations by using self-employed associate dentists. The Court accepted that this was a common arrangement within dental practices.
The Defendant provided the associates with a non- exclusive licence and authority to practice dentistry and surgery at the practice, while also imposing restrictions, including forbidding them from taking a patient to another practice should they move.
The Judge found that it was the practice itself that had a contractual obligation with the local health board and that the Claimant could not choose which dentist treated her.
Although this judgement may be worrying for dental practice owners, they will likely be entitled to an indemnity from individual negligent associate dentists and should ensure that all dentists working at their practice have suitable individual professional indemnity cover.
Read more: https://www.civillitigationbrief.com/wp-content/uploads/2021/05/Breakingbury-v-Croad-Judgment-1.pdf
The report, published in early July, found a ‘Blame culture’ in maternity safety failures.
The CQC’s Chief Inspector of Hospitals reporting evidence of a ‘defensive culture’, ‘dysfunctional teams’ and ‘safety lessons not learned’. Professor Ted Baker told the inquiry that more than a third of CQC ratings for maternity services identified requirements to improve safety, larger than in any other specialty. MPs recommend urgent action to address staffing shortfalls in maternity services, with staffing numbers identified as the first and foremost essential building block in providing safe care.
Health and Social Care Committee Chair Rt Hon Jeremy Hunt said:
“Although the majority of NHS births are totally safe, failings in maternity services can have a devastating outcome for the families involved. Despite a number of high-profile incidents, improvements in maternity safety are still not happening quickly enough. Although the NHS deserves credit for reducing baby deaths and stillbirths significantly, around 1,000 more babies would live every year if our maternity services were as safe as Sweden.
“Our biggest concerns were around staffing and culture: staffing levels have now started to improve but we found a persisting ‘culture of blame’ when things go wrong which not only prevents people admitting that mistakes were made, but crucially, prevents anyone learning from them.
“Our independent expert panel gave an overall verdict of requires improvement”
The National Maternity Review, Better Births, described the process for compensating birth injuries as failing on its three objectives to provide rapid and compassionate support to parents; effective learning for staff and improved outcomes; and reduced incidences of harm.
Maternity incidents remain the highest cost of claims against the NHS in England. NHS Resolution paid out £2.3 billion in compensation in total for clinical negligence claims in 2019/20 of which 40% related to maternity.
A review of compensation schemes around the world found that “a quiet but notable shift has occurred away from adversarial court-based dispute resolution to administrative compensation schemes”. The result of that shift has been significantly lower costs.
Sweden uses a no-blame compensation scheme for medical injuries administered by healthcare insurers. Compensation is awarded based on whether an incident was considered avoidable rather needing to prove negligence. Compensation is paid if it had been established that care had not been given “according to best practice” which negates the need to prove negligence.
Read more: https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/19/1906.htm#_ idTextAnchor032
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