Suggested Model Directions for Clinical Negligence cases before Master Ungley and Master Yoxall

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1 Suggested Model Directions for Clinical Negligence cases before Master Ungley and Master Yoxall Version 2 (27/6/02) Introductory note These directions are based on orders that have been made and obeyed; they are not to be slavishly followed, but used as guidelines only. The approved general form of order for directions is the Queen s Bench Masters Practice Form 52. This does not cover the clinical negligence situation adequately. It is of course, a practice form, and offers guidance as to what orders might be made to bring a case of any type to trial. Accordingly the following specimen paragraphs can be used to prepare a draft order before a case management hearing. If this is not served with an application, it should be sent to all other parties in sufficient time for them to consider it before the hearing. [It is especially helpful if the draft order is double-spaced with wide margins to allow for corrections at the time the order is made.] ORDER Allocation Allocate to Multi-Track [In most cases allocation will have been dealt with on Allocation Questionnaires.] Preservation of Evidence The Defendant do retain and preserve safely the original clinical notes relating to this 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 Legible copies of the medical 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. All reports coming into existence for the purpose of the case disclosed by any party are to be placed in a separate paginated bundle at the earliest opportunity by the Claimant s Solicitors and kept up to date. Upon reports being added to such bundle the Claimants are to serve a revised index to such bundle upon all other parties. All references to such reports in subsequent reports shall include a reference to the relevant pages in that bundle. 1

2 Split Trial [An order That there be a split trial is inappropriate. The following is suggested.] 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. Amendments Permission to Claimant / Defendant to amend the Particulars of Claim / Defence in accordance with the draft initialled, the Defendant to serve an amended Defence by. If an amended Defence is served permission to Claimant to serve a reply within days thereafter Costs of and occasioned by the amendments to be borne by (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..if no objection to the draft amendments response to be served by If objection is taken to the draft, permission to restore. Disclosure Standard disclosure by list/category to be effected by ( within.. days after a reply is served or due). [A reference to inspection is now supererogatory having regard to the terms of r ] Witness statements Each party shall exchange all factual evidence on issues of liability, causation and quantum in the form of signed and dated witness statements to be disclosed by simultaneous exchange on or before.. and shall serve Civil Evidence Act notices by the same date. Evidence of all concerned with the treatment and care of the Claimant at the time of the matters alleged against the Defendant shall be deemed to be evidence of fact and be disclosed in accordance with this paragraph. Expert Evidence A. Joint Single Experts Permission to the Parties to rely upon the evidence of joint single experts in the fields of [state the disciplines], identity of the experts to be agreed by.. 2

3 Instructions to be provided to the expert by.. report to be prepared by.. If the parties are unable to agree on the identity of the expert to be instructed, parties to apply to restore before the Master. [At such hearing the parties are to provide details of the CVs of the expert they propose and reasoned objections to any other proposed] B. Separate Experts Each party shall exchange all expert evidence on liability and causation in the form of expert reports to take place by simultaneous exchange on or before and such evidence to be limited to a report from one expert in each of the following disciplines: [ state the disciplines,] permission being given to call the makers of the same to give oral evidence as to matters remaining in issue. C. Permission to The Claimant and all Defendants (Defendants acting jointly, unless otherwise ordered ) to rely on expert evidence on quantum, condition and prognosis in the form of expert reports limited to one expert from each of the following fields. [state the disciplines] permission being given to call the makers of the same to give oral evidence as to matters remaining in issue. Reports to be served as follows, Claimant s by Defendants by.. [ usually about 3 months after the Claimant s ] D. Any unpublished literature upon which any expert witness proposes to rely shall be served at the same time as service of his statement together with a list of published literature and copies of any unpublished material. 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 leave of the trial judge on such terms as to costs as he deems fit. Experts Discussions Unless otherwise agreed by all parties solicitors, the experts of like discipline for the parties shall discuss the case on a without prejudice basis by / / 02. (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, a draft Agenda in the form of open questions capable, as far as possible, of being answered yes or no shall be prepared jointly by the Claimant s solicitors and experts and 3

4 sent to the Defendant s solicitors for comment at least 28 days before the agreed date for the experts discussions; [The agenda should assist the experts by directing them to the issues identified between the parties in the pleadings and should not be in the form of leading questions] (c) The Defendants shall within 14 days of receipt agree the Agenda, or propose amendments; (d) Seven days thereafter all solicitors shall use their best endeavours to agree the Agenda; in default both versions shall be considered at the discussions. Unless otherwise ordered by the Court, or unless agreed by all parties, including the experts, the parties solicitors shall not attend such discussions, if solicitors do attend, the experts may if they so request, hold a part of their discussions in the absence of the solicitors. Where solicitors do attend. they should not normally intervene, save to answer questions put to them by the experts or to advise them upon the law. A 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 in any event within 7 days. Copies of the statements are to be provided to the parties solicitors thereafter. Schedules Claimant to serve by../../02 a final Schedule of loss and damage with supporting evidence costed to the date of trial. Defendant to serve by./../02 a Counter Schedule with supporting evidence [Note 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 attachment] Trial Directions The Claimant s Solicitors shall apply on or before [usually no later than 6 weeks after the CMC at which the disciplines of the experts are fixed]. to the Clerk of the Lists in London / [the Listing Officer in the venue] for a listing appointment for a trial period for hearing within the trial window/ Dispense with Listing Questionnaires, unless directed by the Clerk of the Lists. [NOTE. The Clerk of the Lists, 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 accommodate 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 ] Mode of Trial: Judge Alone. London Listing category : Estimated time: Trial Window:./ / 03 to../../03 4

5 Dispense with listing questionnaires unless directed by the Clerk of the Lists. (Certified fit for trial by High Court Judge if available ) Alternative Dispute Resolution The parties shall by [a date usually about 3 months before the trial window opens] consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the trial judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make. The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the Court a Witness Statement, without prejudice save as to costs, giving the reasons upon which they rely for saying that the case was unsuitable. The Witness Statement shall not be disclosed to the trial Judge until the conclusion of the case. Trial Bundles Parties to 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 [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] Restoration of hearing Further CMC Room E 106/101 on.. at. Time estimate... mins. [ Note : If all directions have been complied with and there are no further directions to be made, the further CMC can be vacated by consent, preferably giving the Master as much notice as possible ] Permission to restore the application for further directions [Note An application to restore will be made as follows; provided that the time estimate is 20 mins or less. The parties will apply directly to Master Ungley / Master Yoxall by joint letter stating that the application will take no longer than 20 mins. and giving 3 dates on which both parties are available. The application will be listed by the Master at a.m. on the first available of those dates] [ 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. s are an acceptable means of communication, provided that they are copied to all parties.] Costs in case / (or other costs order sought) Claimant to draw and file this Order by../../02 and serve the Defendant(s) 5

6 addresses (to be used only for case management purposes): NOTE. The Court File in cases proceeding before the Masters will not be placed before the Master. Parties wishing for it to be produced should notify the Registry in Room E.07 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. 6