Monday, January 4, 2021
The much-anticipated final Expert Group Report to Review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims, chaired by Mr Justice Charles Meenan (the Report), issued with little fanfare prior to Christmas.
The Report which can be accessed here contains 17 recommendations summarised as follows:
Let us hope that this is the final report in which pre-action protocols are recommended. Let us hope also that there is little delay in bringing about these much-needed reforms. Having worked in this area of the law in the UK, the writer can attest to the significant efficiencies that can be achieved with the use of mandatory pre-action protocols in the management of even the most complex clinical negligence claims. The protocols encourage co-operation and provide for the narrowing of issues in dispute between the parties. However, in order for the protocols to work effectively, it is also important for the parties to be compelled to address the issue of quantum in a meaningful way at the pre-action stage which in turn will allow for realistic offers of settlement much earlier in the life of the claim.
The Report also recommends the provision of witness statements, the entirely laudable rationale for this being to avoid claimants having to give evidence of a personal or intimate nature in open court. The Report posits that the adversarial aspect of a court hearing could be confined to resolving disputes between suitably qualified experts. The writer has long advocated for the use of witness statements of fact in clinical negligence actions in Ireland similar to other common law jurisdictions. Witness statements can be a crucial part of the case, designed to give advanced notice of the evidence to be relied on at trial, allowing the parties and, most importantly, their experts to be better prepared and thus reducing the element of surprise. However, the Report suggests that the use of witness statements could potentially remove the need for the claimant to give evidence in court unless he or she wishes to do so. The likelihood is that such statements would only replace the evidence-in-chief of the witness. Each party must surely retain the right to cross-examine their opponent’s witness in order to “test” the cogency of the evidence and the witness’s credibility. In such circumstances, unfortunately, the claimant would still have to submit to cross-examination on his or her evidence.
The Expert Group recommended the implementation of the excellent case management proposals set out in the report of the Working Group on Medical Negligence and Periodic Payments (Module 3) which, the Expert Group say, would considerably improve the current system to the benefit of the litigants involved. However, The Expert Group also notes that, “whilst proposed rules have been circulated for the implementation of pretrial protocols and a Statutory Instrument is being drafted, there has been no such progress in the introduction of case management”.
Case management is an essential tool for the purposes of controlling lengthy, complex and potentially unwieldy clinical negligence cases. It is critical that we do not miss the opportunity to effect this reform in this highly sensitive area of the law. It is critical also, for the sake of all parties involved in these difficult cases, that reforms are not piece-meal.
For further information in relation to the above article, please contact Marie Kinsella.