COVID-19 Clinical Negligence Protocol 2020

A Protocol has been introduced between SCIL, NHS Resolution and AVMA, which deals with the conduct of personal injury litigation.  Details can be found here.



The press release has a useful summary

“The protocol is wide-ranging, covering:

  •  moratoriums upon limitation until 3 months after the protocol ends;

  • making use of email to serve and receive documents the default position;

  • encouraging much more innovation for example  on-line examinations of clients for medical expert reports;

  • encouraging more co-operation in the progress of claims, and in particular interim payments of damages and costs to avoid unnecessary court hearings;

  • settlement meetings and mediations to take place remotely wherever possible;

  • consideration of whether costs budgeting needs to take place initially or can be requested to be adjourned in order to save court and other resources.

Of particular note, and in contrast to other claims protocols to cover the current situation, is that the agreement continues in place indefinitely, until one of the parties gives notice to end it.  The provisions are also subject to review, and possible refinement, every 8 weeks to continue to respond to the challenges of the current situation.”


COVID-19 Clinical Negligence Protocol: 2020

This protocol is modelled on the best practice approach to litigation agreed between the
Association Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL)
and the protocol agreed by the Association British Insurers (ABI) and various signatories in
the conduct of personal injury litigation during these unprecedented and difficult times which
have arisen as a result of Covid-19. This protocol is not intended to create legal relations or to
be a contract.

Unlike personal injury litigation, clinical negligence litigation relies on medical expert
opinion to identify and determine both liability (breach of duty/causation) and quantum
issues. In both public and private healthcare sectors, many medical experts have been called
to healthcare’s front line in the fight against Covid-19 and this has created a shortage of
available experts from whom claimant and defendant lawyers can commission reports on
liability and/or quantum.

In many cases, NHS and private hospital complaints processes have been suspended and
internal investigations such as serious incident reports (SIR) or similar investigation
processes have been delayed. The NHS Resolution’s “Covid-19: Position Statement – 6 May
2020” says that as a matter of principle they will not be approaching front line or redeployed
staff where it could disrupt patient care or have an adverse impact on staff. These are just
some of the factors which result in inevitable delays in progressing clinical negligence
litigation. These factors support the need for parties to be able to rely on a clinical negligence
specific protocol for those involved in the conduct of clinical negligence litigation at this time
of national emergency and the recovery period which will follow. This protocol should be
seen as a reflection of the cooperation between the parties in clinical negligence claims

It is intended that this protocol will encourage positive behaviours from both claimant and
defendant lawyers and organisations as well as consistency of approach in practices around
England. It should reduce the risk of costs being spent on issuing proceedings, applications
to extend time or stay proceedings. We propose that the parties should be allowed to refer the
court to this protocol for non-compliance if subsequently there are issues or arguments about
costs being incurred unnecessarily by either party during this time, and also to demonstrate
compliance e.g. with service provisions. Referral to the court should only occur to
demonstrate a matter of fact. The parties are not permitted to request the court to adjudicate
over the wording of the protocol or make submissions as to the protocol’s intentions.

It is proposed that once this protocol has been agreed that it comes into effect immediately
and can be relied upon throughout the duration of the Covid-19 pandemic and recovery.

It is also proposed that the protocol should be reviewed every 8 weeks from the date it is
agreed. The eight weekly review is to enable notice to be given to all clinical negligence
practitioners of any changes to be made to the protocol and for the parties to give notice of
their intention to terminate their participation. Any party wishing to terminate their
participation should give 4 weeks’ notice, in writing to the other signatories to this protocol.

For the avoidance of doubt, any party giving notice to terminate their participation in the
scheme does not bring the scheme to an end. The party giving notice will continue to be
bound by the terms of the protocol until the four-week notice period has expired. They will
also continue to be bound in cases where they have already received written notification in
accordance with paragraph 1c, limitation in those cases will continue to be suspended in
accordance with paragraph 1a of the protocol.

Distribution of notices concerning the protocol shall be promoted through the Law Society
Gazette, if possible. Each signatory will also use their best endeavours to notify their
membership of any termination/updates.

The parties responsible for reviewing the document are a representative from NHS
Resolution and a lawyer from one of NHS Resolution’s panel firms of solicitors; a
representative from the Society of Clinical Injury Lawyers (SCIL); a representative from
Action against Medical Accidents (AvMA) who represent the injured claimant’s interests;
representatives from any other organisation agreeing to comply with the terms and spirit of
this protocol.

1. Limitation and Extensions of Time:

a. Provided that written notification has been given in accordance with clause c
below, the running of the unexpired limitation period in all clinical negligence
cases, is suspended until 3 months after the end of this protocol. Unexpired
limitation shall include cases where the primary limitation period has expired
but there is a current agreement to raise no limitation defence in force at the
time that this protocol is signed.

b. Covid-19 and the government’s recommendations on social distancing have
meant that the dates for many inquest hearings have been adjourned and/or
inquests are not being listed until the first open date after October 2020. The
delayed inquest hearing will inevitably have an effect on the deceased’s
representatives and/or their legal advisors to consider all available evidence
and in turn their decision to bring a claim arising from the death. To
accommodate this, provided that written notification has been given in
accordance with clause c below, the limitation period will be suspended for
three months for any claims identified either before or after the conclusion of
the inquest hearing. The limitation period will be suspended for any civil
claims brought under domestic law or claims brought under the European
Convention on Human Rights.

c. In order for a party to rely upon clause a or b, written notification prior to the
expiry of the limitation period in the form of a letter must be sent to the
indemnifying organisation confirming that proceedings are not being issued in
accordance with this clause.

d. Reasoned and reasonable requests to extend the deadline to comply with Court
directions or a response to a letter of claim or an extension of time for service
of a Defence under the pre action protocols will not be opposed save in
exceptional circumstances and where possible will be made with consent of
both parties. As per Practice Direction 51ZA parties will not need permission
from the court for an extension of time of up to 56 days.

e. Where a party requests an extension of time to comply with court directions
which is more than 56 days that party should provide evidence to substantiate
the reason for the request. For example, if the request is by reason of the
unavailability of an expert report, due to the expert being involved in frontline
work or because the expert or the lawyer with conduct of the case are
themselves experiencing symptoms thought to be related to COVID-19
infection or by reason of a party having been furloughed, evidence of the
position ought to be produced in support of the application. This is to echo the
spirit of the recent case-law decision in MUNCIPIO DE MARIANA & ORS v
LTD (Second to Sixth Defendants not party to the proceedings) (2020) [2020]
EWHC 928 (TCC) that parties should comply with timescales in cases
wherever possible and despite the COVID-19 situation

2. Telephone calls/emails

a. Good communication is very important, particularly now that many offices
have closed and lawyers with conduct of clinical negligence cases are unable
to access their post daily. Practitioners should engage with their counterparts
by telephone and/or email with a view to resolving disputes effectively and
efficiently. Firms and organisations are responsible for ensuring that their staff
who are working and continue to have conduct of files can make and receive
telephone calls even while home working. Email signatures should be updated
to indicate the correct contact numbers if they have changed due to remote
working. Similarly, individual email addresses should be provided.

b. Where possible there should be reciprocal acceptance of encrypted emails by
all parties. The parties agree to use their best endeavours to accept encrypted
emails, although it is acknowledged that some systems will not be permitted
due to firewall/ISO policy compliance.

c. Defendant organisations/lawyers will send all documents by electronic means
wherever possible.

d. Claimant organisations/lawyers should accept correspondence by email,
wherever possible including court documents.

e. Claimant solicitors should note that NHS Resolution have specifically
requested that correspondence is sent to them by email only. If for any reason
this is not possible then the claimant representative should contact the
allocated NHS Resolution case handler or lawyer.

f. Letters of Claim copied to NHS Resolution (as required under the clinical
negligence pre-action protocol) should be sent to:

g. NHS Resolution are not authorised to accept formal service of court
documents but their panel lawyers, where appointed, are authorised to accept
service of court documents via email.

h. Should Claimant solicitors become concerned with their counterpart’s failure
to act in accordance with this protocol they should contact the lead signatory
detailed below for the organisation concerned. Participants should note that
the intention of the escalation process is to deal with repetitive failures to
comply with the protocol, not individual interpretations of the wording or
evidential facts of the case.

i. Should an indemnifier become concerned with their counterpart’s failure to act
in accordance with this protocol they should contact the managing/complaint
partner of the individual organisation/firm.

3. Service by email including new proceedings

a. Service of documents via email including the Claim Form, particulars of claim
and any supporting evidence is to be an accepted method of service in clinical
negligence claims under, and for the duration of, this protocol unless that is
expressly disallowed in advance with a good reason provided for doing so. If
the email is not delivered for any reason, eg its file size is too large, the burden
is on the serving party to ensure it is served either by breaking the message
and attachments down into receivable sizes and/or by using a different method
of service.

Note – The provisions contained in clause 3a can only apply to participants of
this protocol and their panel firms. Defendant indemnifiers agree that if
service of a document is undertaken by email and they subsequently become
involved in the litigation, they shall not take issue with service by email.

b. To facilitate the smooth administrative running of service of documents by
email, the email address of the conducting fee earner on correspondence shall
be deemed the suitable address for service of documents and proceedings.

4. Medical examinations of clients for Condition and Prognosis reports

It is inevitable in the current circumstances that face -to-face examinations will be
difficult to arrange and undesirable, given the Government’s guidance for travel.
Parties should not attempt to pressure Claimants to attend such appointments e.g. by
refusing to agree to an extension for service of any expert reports. Both parties should
consider and promote the use of remote/virtual examinations wherever possible to
ensure cases proceed. If both parties are intending to call upon the evidence of an
expert of like discipline, then unless otherwise agreed both examinations should take
place utilising the same basis to facilitate the examination; face to face or
remote/virtually. The parties should cooperate to ensure, where necessary, a patients’
medical records and imaging are shared electronically to avoid any delay in the
resolution of the claim.

5. Exchange of evidence

Further to paragraph 3 above, the parties should wherever possible agree to the
exchange of witness evidence and expert evidence by encrypted email.

6. Interim payments

Parties ought to adopt a reasonable approach to requests for interim payments of
damages and payments on account of costs. In the current climate, such payments are
likely to be of vital importance, and any unnecessary applications to the court ought to
be avoided. Reasonable requests will be considered by indemnifiers. This clause
does not have the intention of mandating an indemnifier to always make an interim
payment for damages or costs on all cases. All such requests should be responded to
within 21 days, wherever possible.

7. Settlement Meetings & Mediations

Consideration should be given, wherever possible, to all settlement discussions
whether pre- or post-issue of proceedings taking place via secure electronic means
(e.g. video conferencing) to avoid unnecessary delay in matters.

8. BACS payments

To enable a more efficient and effective transfer of funds for damages and costs firms
should use BACS payments wherever possible.

9. Cost Budgeting

It is recommended that where possible parties exchange their costs budgets in good
time. The parties should consider whether the budgeting aspect of the CCMC hearing
should be adjourned.

10. Hearings including adjournments

a. The parties should seek to agree Orders, including directions timetables,
wherever possible to avoid the need for hearings.

b. Generally, NHS staff whether they are clinicians or managers should not be
required to do anything which affects frontline clinical care. Equally however,
the COVID-19 situation should not be used as an excuse for avoidable delay
in matters.

c. It is inevitable that some adjournments will be required due to nonavailability of clients, witnesses, or experts. They should however be kept to an absolute minimum and the opposing party notified of the risk of nonattendance as soon as it becomes apparent.

d. HMCTS has issued guidance on the wider use of remote hearings, by
telephone or Skype. It is recommended that parties adopt this guidance. This
can be accessed here –

e. A list of which courts are open has been compiled on the judiciary website –