A Costly Refusal? Court Penalises Claimant for Failing to Follow the Clinical Negligence Pre-Action Protocol

A recent County Court decision demonstrates that the Pre-Action Protocol for the Resolution of Clinical Disputes can have real consequences. Despite the Claimant's representatives maintaining that the court would not impose sanctions for any pre-action non-compliance, the Court subsequently imposed a range of costs and procedural sanctions.

Background

The claim arose from admitted negligence during a laparoscopic hysterectomy which resulted in ureteric injury and, ultimately, nephrectomy. 

Clyde & Co LLP were instructed by insurers to represent the private Gynaecologist against whom the allegations were made. 

Liability had been admitted at an early stage and prior to the issue of proceedings:

• The Defendant made a settlement offer with the Letter of Response;
• Interim payments were released and a limitation moratorium agreed to allow the Claimant to investigate quantum; 
• The Claimant’s quantum investigations took approximately 15 months. This evidence was then served on a without prejudice basis. The Claimant sought over £300,000 in damages; 
• The Claimant did not make any settlement offer but invited a revised settlement offer from the Defendant; 
• The Defendant elected to instruct a psychiatric expert and also proposed ADR;
• The Claimant declined the above noting that (a) this process would take approximately 6 months; and (b) no further offer had been made from the Defendant. 
• The Claimant also objected to attending a medico-legal assessment in London and said that she would only attend a remote assessment or travel up to an hour. 

Clyde & Co put the Claimant on notice that sanctions would be sought for failing to comply with the pre-action protocol if proceedings were issued. 

The Claimant did not deny that she had not followed the pre-action protocol at this stage and the response received from her representatives was that they did not believe that the Court would impose sanctions.

Proceedings were then issued / served, and the Claimant invited the Defendant to attend ADR whilst the parties waited for the first case management conference.  

The issues

At the case management conference, the Defendant sought directions which included sanctions against the Claimant for failing to comply with the pre-action protocol. A stay in proceedings was also sought pending the Claimant attending an examination/assessment by the psychiatric expert instructed by the Defendant.

The Claimant asked for normal case management directions to trial. By this stage the Claimant asserted that she had in fact complied with the protocol. Moreover, it was said that the Defendant had failed to comply with the overriding objective as they had not accepted their offer of ADR after proceedings had been issued and also not provided a reasonable location for expert assessment.   

The Protocol Framework

The Protocol states that it sets the standard of normal reasonable pre-action conduct in clinical disputes. Its stated aims include reducing delay, ensuring proportionality of costs and resolving disputes without litigation wherever possible. It also expressly encourages parties to consider ADR, recognising that litigation should be a last resort. 

The Protocol further provides that where a party fails to comply, the court may impose sanctions and will consider both the nature of the non-compliance and its impact on the opposing party.  

The exact nature of sanctions are set out in the Practice Direction from the Pre-Action Conduct and Protocol:-

“16. The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—

(a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;

(b) an order that the party at fault pay those costs on an indemnity basis;

(c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have

(d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.”

The Court's Decision

At a case management conference on 14 August 2026 before DDJ Evans at Yeovil County Court*, the Court expressly recorded that the Claimant had failed to comply with the Pre-Action Protocol for the Resolution of Clinical Disputes because she:

• Declined to allow the Defendant sufficient time to investigate quantum;
• Declined to engage in any form of ADR; and
• Failed to deal with the case justly and at proportionate cost. 

The Court then imposed a series of sanctions, namely:

• An order that the Claimant pay the costs associated with issuing and serving proceedings on the indemnity basis;
• An order depriving the Claimant of interest on any damages from the date of issue until attendance at an in-person psychiatric examination; and 
• A stay of the proceedings pending attendance at that examination.

These sanctions closely mirror those contemplated by the relevant Practice Direction, demonstrating the court's willingness to use its case management powers where parties fail to engage meaningfully in the pre-action process. 

Practical Lessons

For defendants and indemnifiers, the decision highlights the importance of creating a clear evidential trail demonstrating efforts to comply with the Protocol. Requests for further investigations, proposals for ADR and reasonable attempts to narrow issues should be carefully documented.

For claimants, the case serves as a reminder that courts increasingly expect parties to engage constructively with pre-action processes. Whilst no party can be compelled to settle, an outright refusal to consider ADR or facilitate reasonable investigations may carry significant risks.

More broadly, the decision aligns with the ongoing judicial trend of promoting proportionality, cooperation and early dispute resolution. This reinforces the principle that litigation should remain a last resort and that parties are expected to take genuine steps to avoid unnecessary proceedings wherever possible. 

Clyde & Co's healthcare group is recognised for its extensive industry knowledge, offering a range of legal services covering public and private clinical negligence litigation as well as inquests, advocacy, professional regulation, product liability and pharmaceuticals/life sciences. Should we be able to assist you, please do contact one of our experts.

*Anna Hughes of 2 Temple Gardens represented the Defendant