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The continued evolution of medical negligence claims in Northern Ireland


Northern Ireland Partner, Victoria McLean, looks at how the updated Clinical Negligence Protocol has impacted medical negligence cases over the last couple of years.

Back in October 2021 an updated Clinical Negligence Protocol came into effect in Northern Ireland, revoking the previous 2012 Protocol and reflecting the evolution of medical negligence claims over the last decade.

The Protocol covers all claims falling within the remit of the High Court of Northern Ireland and introduced the following new procedures:

  • Costs sanctions for non-compliance with the Protocol
  • Formal standstill agreements which suspend statutory limitation periods
  • Directions regarding the exchange of liability and quantum reports
  • Case Management Reviews 13 months post-issue of the Writ
  • Emphasis on Alternative Dispute Resolution


For the last couple of decades, there has been a limited legal framework governing the conduct of legal practitioners prior to the issuing of proceedings. Pre-Action Protocols have been introduced across a variety of practice areas as a means of advocating for inter-party disclosure and encouraging early completion of liability and quantum investigations.

A Pre-Action Clinical Negligence Protocol was first introduced in Northern Ireland in 2009 and revised shortly thereafter in 2012.

The central purpose of the Protocol was to encourage parties to adhere to the Northern Irish Court’s Overriding Objective – “to ensure the equal footing of the parties, reduce costs, and allocate limited court resources appropriately” - as enshrined in the Rules of the Supreme Court (Northern Ireland) Statutory Rules of Northern Ireland 1980.

It directs that:

  1. Before the issue of any proceedings, the plaintiff must send a Letter of Claim to the intended defendant, as soon as is practicable, after review of the relevant medical records and expert evidence.
  2. This Letter of Claim must provide sufficient information to enable the intended defendant to commence investigations.
  3. The intended defendant must acknowledge it within 14 days.
  4. The intended defendant has 4 months (subject to extension by agreement) to investigate and respond through a Letter of Response, and there are possible costs and procedural penalties for non-compliance with these Pre-Action steps.

The Pre-Action Protocol, on the whole, is a positive step in the right direction. However, due to the absence of any cost sanctions or consequences for non-compliance, the requirements are very often ignored. By way of contrast, in England and Wales, the courts are very tough on non-compliance for pre-action requirements. We hope to see a reform of the process in due course to encourage early disclosure and preparation of medical evidence.

Case management directions

The Clinical Negligence Protocol also introduced case management directions.

Under the Protocol, clinical negligence cases are now listed for review before Master 13 months after issue of Writ.

The Master will issue case management directions in order to progress the case. They will then direct further on issues pertaining to discovery and provision, which will be made for simultaneous exchange of liability evidence and sequential exchange of quantum evidence.

The Master will review the case up to three times to ensure both parties are ready. These three reviews will cover initial directions, active case management and pre-setting down issues. It is the Master’s expectation that the parties would normally only require a maximum of three reviews, after which the case should be set down and timetabled for hearing. However if the parties are not ready following the three review hearings, the Master will refer the case to the Senior Queen’s Bench Division Judge, Mr Justice McAlinden.

These periodic reviews before the Master have been a welcome addition, helping to establish realistic timetables whilst ensuring case progress can be controlled more robustly.

Bespoke expert evidence guidance

Expert witnesses have significant responsibilities within clinical negligence cases, which derives from their unique and vital role in this area. It is, therefore, important that the chosen expert has the relevant current expertise and does not fall short of the required standard.

The Expert Evidence (Clinical Negligence) Practice Direction 2021 No. 2, provides bespoke guidance pertaining to expert instruction in this area of practice, and was introduced at the same time as the Clinical Negligence Protocol. It includes several requirements:

  • The expert must have the requisite expertise for the specific case.
  • They must be provided with a copy of the Practice Direction at the point of their instruction and signposted to the guidance.
  • There is to be no circulation of minutes from the expert meetings, beyond the experts, before agreement and signature by participating experts.
  • The Instructing Solicitors and Counsel are to have no input into the expert’s agreed minutes.

The Protocol also introduced the following conditions regarding the exchange of expert reports and minutes arising for expert meetings:

  • The parties must notify each other 35 days prior to exchanging reports of the number and type of reports it is proposed will be exchanged.
  • Expert meetings should be arranged within 28 days of exchange of reports.
  • The agenda should be drafted by the plaintiff’s solicitor and sent to the defendant’s solicitor not less than 35 days prior to meeting.
  • A Scott Schedule should be prepared within 7 days of the expert meeting. 

It is important to note that cost budgets are not applied in this jurisdiction, unlike in England and Wales. Neither the plaintiff nor the defendant need to seek authority from the Master in Court for a certain expert fee. Also, in this jurisdiction, the expert’s terms and conditions would be obtained and agreed prior to formal instruction unlike in England where often the experts increase the cost of the report after they have completed it.


Long gone are the days of parties keeping their cards close to their chest until the last opportunity. The Protocol definitely promotes a ‘cards on the table’ approach to medical negligence claims, which is welcomed by both plaintiff and defence practitioners in Northern Ireland.

In particular, the introduction of the Masters’ Reviews and case management directions have had a positive impact on maintaining the momentum of a case, enabling the defendant to retain a degree of control in ensuring that it does not become stagnant.

Victoria McLean

Victoria McLean
Partner - Belfast


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