When I last reported on the subject of the Forum, a meeting had been set between Claimants' and Defendants' to try and hammer out a joint Pre Action Protocol. However prior to that meeting, Master Victoria McCloud then wrote to the Forum, to explain that she could no longer play a role.
So, the Group was left without judicial support for the time being. Nonetheless the Claimants offered to meet with the Defendants, and a date was set for the 9th May 2017 at the offices of BL Claims to discuss the Protocol. Prior to that meeting, the Claimants' team had meet to discuss and agree their joint approach, which is set out in the present Claimants' Draft Protocol.
Sarah Erwin-Jones of Browne Jacobson and Adam Weitzman QC of 7 Bedford Row kindly agreed to attend. It is not clear at present how much "buy in" there was from the Defendant firms and it was made clear neither had authority to bind any firm, insurance company or institution.
The minutes of that meeting have not yet been agreed. However, these are the main points:-
"7. PRE MEDICAL REPORT OFFERS
7.1 There shall be no offers of settlement made by the Defendant prior to the service of any expert medical evidence unless specifically invited in writing by the Claimant."
The Claimants pointed out that the whole idea behind the protocol was the early provision of disclosure and information to the Defendants. If this was not agreed, then the Claimants would simply withhold that disclosure/information until they were ready to draft a full Letter of Claim. There was no point being open about a claim from the outset, if the Claimant was going to be wrongfooted by the Defendant. The Defendant answer to this was that Part 36 allowed for a court to vary the normal consequences of a Part 36 offer accepted late.
The objection to Clause 7 led to a discussion as to what would be the "trade off" for the Defendants accepting paragraph 7. In other words, what would they accept in return for their agreement to this Clause?
Two options were suggested:-
The Defendant makes a pre-medical report Part 36 offer. The Claimant then obtains a medical report. If the Claimant then wants to accept the Defendant's offer, then the Claimant doesn't have to pay the Defendant's costs out of his damages, i.e. both sides drop hands 21 days from the date on which the Part 36 offer is made.
If the Claimant accepted a Part 36 offer late, having obtained medical evidence and disclosed it, then he could only recover local court rates, i.e. no enhanced rate, throughout the case.
The day after the meeting, on the 10th May 2017, Master McCloud wrote to the entire Group again. She explained that her earlier concern was, understandably, that her involvement might have appeared to be "official". Alternatively it might have led to the position where, say, a solicitor relied on the protocol, but was then criticised by a different judge for using it or part of it.
Master McCloud explained what whilst she would not be able to engage in the Protocol work at a detailed level, she wanted to be kept informed. If both sides could agree to a Draft Protocol, then she would be happy in that event to pass it on to the relevant members of the Rules Committee to invite them to consider it as a joint claimant and defendant and stakeholder suggestion.
The next step is for Claimant firms to agree on which Option to put to the Defendant firms. We can then set a further meeting.
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