Overview of consultation

Between January and March 2025, the Northern Ireland Department of Justice undertook a consultation on the 'Enabling Access to Justice' Programme Delivery Plan, and how they intend to progress reforms. More information can be found at the government's consultation page.

MPS submission

Note: Questions 1 - 3 were data collection fields therefore have not been included in the below.

Question 4) To what extent do you agree with the order in which reform proposals are to be progressed as stated in the Enabling Access to Justice Delivery Plan?

Medical Protection Society is the world’s leading protection organisation for doctors, dentists and healthcare professionals, protecting and supporting the professional interests of more than 300,000 members around the world. We see first hand the impact of delays, and a lack of early resolution routes, has on both our members and the plaintiffs in cases.

The majority of claims we receive against our members in Northern Ireland are funded by plaintiffs that have the benefit of legal aid.  This is in contrast to the jurisdiction of England and Wales where the majority of claims are brought under a “No Win, No Fee” Conditional Fee Agreement between the plaintiff and their solicitor.

Despite both jurisdictions having a similar pathway as to how clinical negligence claims are progressed through the court system, there are noticeable differences between these jurisdictions in both shelf-life and the ability to resolve claims “pre-action”. 

Dealing firstly with delay, it takes considerably longer to conclude a claim in Northern Ireland compared to England and Wales. One reason often provided by plaintiffs’ solicitors is delays with obtaining financial authority from the Legal Services Agency. However, it is not clear whether this delay is caused by the LSA or the plaintiff’s solicitor failing to provide the appropriate evidence in support of their application for funding.  It is also the case that the courts are unwilling to make costs orders against plaintiff’s who have the support of legal aid, thereby removing any deterrent for delay.

The outcome of this is that delay creates unnecessary stress for our members, higher legal costs for all parties, unnecessary work for the courts and lengthy delays in justice for the plaintiff.

Secondly, there are also failures to resolve claims within the pre-action protocol and without the need for court proceedings.  The pre-action protocol encourages early investigation and resolution of claims.  The reality is that publicly funded plaintiffs are able to pursue claims of clinical negligence without expert evidence in the correct discipline or, for the vast majority of claims, any expert evidence at all.  The failure to resolve claims pre-action means more stress for our members, higher legal costs and delays in justice for the plaintiff. 

We are concerned that the number of Plaintiffs entitled to bring legally aided clinical negligence claims will increase as a consequence of the proposals in this consultation and we would invite the Department to consider alternative means of funding for claims, such as Conditional Fee Agreements or Damage Based Agreements. 

Question 5) If you do not agree with the proposed order in the Delivery Plan how would you instead prioritise actions?

The Department should prioritise reviewing the scope of legal aid in clinical negligence claims and whether alternative funding methods would better serve all parties.  We welcome the Department’s comments in respect of Alternative Dispute Resolution and would encourage the Department to review the pre-action protocol so that ADR is mandatory.  In addition, the Department should consider an accreditation for clinical negligence solicitors, and the role wasted costs orders could play in ensuring compliance with the pre-action protocol.  

About MPS

MPS is the world’s leading protection organisation for doctors, dentists and healthcare professionals with more than 300,000 members around the world. 

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

MPS is not an insurance company. We are a mutual non-for-profit organisation and the benefits of membership of MPS are discretionary as set out in the Memorandum of Articles of Association.

Contact

Should you require further information about any aspects of our response to this consultation, please do not hesitate to contact us.

Megan Bennett
Policy and Public Affairs Manager
[email protected]