When managing a clinical negligence claim, compliance with the Pre-Action Protocol for the Resolution of Clinical Disputes is critical. While often discussed in terms of procedure, the protocol has significant implications for the management and recovery of costs. Solicitors handling these claims must ensure that every stage, from initial notification to the preparation of expert evidence, is conducted transparently and in line with the protocol’s requirements. Effective management at this stage can safeguard recoverable costs and support a smoother path to resolution.

Objectives of the Pre-Action Protocol

The protocol is designed to promote cooperation, improve transparency, and encourage the early resolution of clinical disputes before litigation becomes unavoidable. It sets clear expectations for both claimants and defendants, requiring that information be shared promptly, allegations be clearly defined, and evidence be obtained in a proportionate manner.

For firms handling complex claims, adherence to these objectives has both practical and financial significance. Efficient pre-action conduct reduced the likelihood of procedural disputes and ensured that costs incurred are defensible if challenged on assessment. Poorly managed pre-action work can result in unnecessary duplication, disputed disbursements, and potential reduction in recoverable costs.

Key Stages of the Protocol and Costs Considerations

1. Letter of Notification

The process begins with a letter of notification, notifying the defendant of the potential claim. Even at this early stage, clarity and precision are essential. A well-prepared notification minimises the risk of ambiguity and helps avoid disputes that can increase costs later. Proper documentation of time spent drafting and reviewing this correspondence ensures that pre-action work is justified and recoverable if the case proceeds.

2. Obtaining Medical Records

Access to medical records is central to assessing the merit of a claim. Delays, incomplete disclosure, or repeated requests for information can create unnecessary work and increase disbursements. Solicitors must balance the need for comprehensive documentation with proportionality, ensuring that only records essential to the claim are requested. Detailed records of correspondence and requests are crucial to support costs recovery.

3. Medical Report and Expert Evidence

After obtaining records, claimants typically instruct an independent expert to prepare a medical report. Expert evidence is often the most significant pre-action costs, particularly in complex cases. Decisions regarding which experts to instruct, the scope of their evidence, and the timing of their reports should be carefully considered to ensure proportionality. Documentation explaining why each expert is necessary strengthens the justification for costs and protects against challenges from the defendant.

4. Letters of Claim and Letter of Response

The formal letters of claim set out the details of the alleged negligence, including any breach of duty and resulting harm. The defendant’s letter of response should address these points clearly. Both documents can be time-consuming to prepare, particularly in cases involving multiple injuries or clinical interventions. Recording the time spent and maintaining a clear audit trail support recoverability and ensure costs are defensible if challenged during a detailed assessment.

Compliance and Consequences for Costs

Courts take a strict view of adherence to the clinical negligence pre-action protocol. Non-compliance, such as delays in disclosure, inadequate expert evidence, or failure to respond properly, can result in sanctions, including reductions in recoverable costs. Both claimants and defendants risk cost penalties if they fail to comply, highlighting the importance of careful planning and precise record-keeping throughout the pre-action stage.

Strategic Considerations in Pre-Action Costs Management

Managing pre-action costs effectively requires balancing thorough preparation with proportionality. Even in high-value personal injury and clinical negligence claims, courts expect solicitors to avoid unnecessary duplication, excessive correspondence, or disproportionate expert instruction. Proper documentation of all steps taken, requests for medical records, preparation of letters of claim, and instruction of expert evidence ensures that costs incurred are justified and recoverable.

Early attention to costs also supports settlement discussions. Where an early settlement is achieved, well-documented pre-action work can maximise recovery and prevent disputes over the value of costs claimed. Conversely, poorly recorded or excessive pre-action work may be vulnerable to reduction, undermining the financial efficiency of the claim.

The Role of a Structured Costs Strategy

A structured approach to pre-action work enables firms to:

• Demonstrate compliance with the protocol while managing costs proportionately.
• Identify and justify necessary disbursements and expert instruction.
• Avoid duplication and inefficiencies that may lead to costs challenges.
• Prepare for early settlement discussions with a clear record of costs incurred.

Integrating costs strategy into every stage of the pre-action protocol allows solicitors to protect recoverability, mitigate risk, and maintain control over the financial aspects of the claim.

Clinical Disputes and Pre-Action Efficiency

The protocol also shapes the broader landscape of clinical dispute management. It encourages a culture of early disclosure, transparency, and cooperation, reducing the likelihood of protracted litigation. From a practical standpoint, managing costs efficiently at this stage is critical. Courts are increasingly willing to scrutinise pre-action work, and disproportionate or poorly documented costs can be challenged or reduced.

Examples in Practice: Pre-Action Protocol Compliance in Clinical Negligence

One real-world illustration of the importance of strict adherence to the clinical negligence pre-action protocol is drawn from common issues encountered in cases where patients allege substandard care. While there may not always be a reported judgment specifically on costs sanctions in this context, courts and protocol guidance make clear that non-compliance at the pre-action stage can have significant consequences for costs recovery.

In practice, solicitors often handle claims involving extensive medical records alongside multiple expert reports and thoroughly detailed correspondence. The pre-action protocol requires that the claimant provides a clear letter of notification and a comprehensive letter of claim, while the defendant must respond fully and promptly. Failure to comply with these requirements, such as incomplete disclosure, vague allegations, or disproportionate expert instructions, can lead to challenges on proportionality grounds and reductions in recoverable costs at assessment.

For example, solicitors may need to obtain detailed medical reports from multiple experts, covering clinical causation, breach of duty, and prognosis. While expert evidence is often essential, overlapping or duplicated reports are highly vulnerable to scrutiny. Courts expect a coherent strategy where each expert’s role is justified, and unnecessary work is avoided. Similarly, repeated chasing of medical records or poorly structured requests for information can be criticised as inefficient or disproportionate.

Key lessons for firms from pre-action experience are as follows:

1. Proportionality is paramount – Regardless of the claim value, pre-action work must be carefully planned to avoid excessive or duplicative activity that could be disallowed on costs assessment.
2. Expert evidence must be managed strategically – Each report should serve a distinct purpose, avoiding duplication while providing adequate support for the clinical negligence claim.
3. Transparency and clarity in disclosure – Letters of claim and requests for medical records must be precise, comprehensive, and supported by contemporaneous records to demonstrate compliance.
4. Document decision-making rigorously – Maintaining a detailed audit trail of all pre-action steps helps defend the recoverability of costs and demonstrates adherence to the protocol.

This practical focus highlights that compliance with the clinical negligence pre-action protocol is not a bureaucratic exercise but a critical safeguard for costs recovery. Firms that plan their pre-action work carefully as well as managing expert evidence strategically and maintaining thorough documentation, are best placed to minimise costs disputes and strengthen their clients’ positions should proceedings become necessary.

How Greener Costs Can Assist

The clinical negligence pre-action protocol can be complex, particularly when considering the costs implications at every stage. Therefore, ensuring compliance, disclosure, strategic planning, and record keeping are essential to protect recoverable costs.

Greener Costs specialises in supporting law firms throughout the pre-action phase and beyond. Our team can:

• Ensure all pre-action work is accurately recorded and justified.
• Advise on proportionality to safeguard recoverable costs.
• Identify potential vulnerabilities in your costs claim early, including duplication of correspondence or unnecessary disbursements.
• Assist in maximising recovery following early settlement or litigation.

Partnering with Greener Costs allows firms to focus on the merits of the claim while ensuring that associated costs are professionally managed and fully defensible.

Contact us today by calling 01204 263047 or emailing info@greenercosts.co.uk and discuss how our team can streamline your pre-action strategy, protect recoverable costs, and provide peace of mind throughout the resolution of clinical disputes.