This instruction applies to:- / Reference:-
NOMS Headquarters
Prisons
National Probation Service / AI 20/2015
PSI 31/2015
PI 22/2015
Issue Date / Effective Date
Implementation Date / Expiry Date
07 December 2015
(Revised) / 12 November 2015 / 10 November 2019
Issued on the authority of / NOMS Agency Board
For action by / NOMS HQ
Public Sector Prisons
Contracted Prisons
NOMS Immigration Removal Centres (IRCs)
National Probation Service (NPS)
Governors
Heads of Groups
NPS Deputy Directors
Community Rehabilitation Companies (CRCs)
NOMS Rehabilitation Contract Services Team
Other Providers of Probation and Community Services
*If this box is marked, then in this document the term Governor also applies to Directors of Contracted Prisons
For information / All staff in NOMS HQ
Prison establishments
National Probation Service
Provide a summary of the policy aim and the reason for its development/revision / This policy revises arrangements for the management of litigation claims in NOMS and updates the existing policy set out in PSI 02/2013 – AI 01/2013 Claims Handling (issued in February 2013).
Update December 2015
- The removal of “bunk beds” as an example of those claims which bring greater financial risk to NOMS in Annex C.
- An amendment to the postal address of Claims Handler, Gallagher Bassett, in Annex K
Contact / NOMS Litigation Team
Associated documents / Litigation can occur as the result of almost any policy or instruction in NOMS. Below are a selection of the more commonly associated documents that may be useful:
PSI 12/2011 Prisoners Property
PSI 64/2011 Safer Custody
PSI 02/2012 Prisoner Complaints
PSI 15/2014 Investigations and Learning following incidents of serious self-harm or serious assaults
PSI 35/2014 - Records Archiving, Retention and Disposal
PI 51/2014 Probation Standard Complaints Procedure
PI 32/2014 Annex A: Approved Premises Manual
PSI 36/2010 – PI 11/2010 Updated Chapter 4 of the ISP Manual
PSI 24/2014 - AI 18/2014 - PI 18/2014 - Information Assurance Policy
PSI 30/2014 – AI 22/2014 – PI 27/2014 - Recall, Review, Re-release of Recall Offenders
PSI 06/2015 - AI 04/ 2015 - PI 03/ 2015 - Policy Organisation and Summary Arrangements for the Management of Health and Safety
PSI 22/2015 – AI 11/2015 – PI 14/2015 Generic Parole Process for Indeterminate and Determinate Sentences
Public Protection Manual
NOMS Finance Manual
Replaces the following documents which are hereby cancelled: PSI 02/2013 – AI 01/2013 Claims Handling
Audit/monitoring:
- Governors will monitor compliance in their establishment.
- Deputy Directors of Probation will monitor compliance in their Division.
- Deputy Directors Custody will monitor compliance in their region.
- Heads of Group will monitor compliance in their group.
Introduces amendments to the following documents: None
All Mandatory Actions throughout this instruction are in italics and must be strictly adhered to.
PAGE 36
CONTENTS
Section / Subject / Applies to1 / Executive Summary / All staff
2 / Operational Instructions
- Handling private law claims
- Handling judicial reviews
- Handling other types of claims
3 / Policy and Strategic Context
- Litigation handling strategy
- Claims Handlers and Legal Advisers
- NOMS Litigation Team
- Finance
- Disclosure
- Covert surveillance
- Fraudulent claims
- Deadlines
Annex A / Guidance on types of litigation
- Private law claims
- Judicial Reviews
- Handling Judicial Reviews flowchart
Annex B / Deadlines for litigation
- Personal Injury Claims
- Claims Portal
- Judicial Reviews
Annex C / Criteria for sifting private law claims / Caseworkers
Annex D / Evidence checklist for property claims / All staff
Annex E / Evidence checklist for personal injury claims
Annex F / Evidence checklist for unlawful detention claims
Annex G / Evidence checklist for Third Party Motor Vehicle Accident Claims
Annex H / Evidence checklist for lack of progression for Indeterminate Sentence Prisoners (ISPs)
Annex I / Evidence checklist for challenges related to child contact procedures
Annex J / Evidence checklist for challenges related to Parole or Recall Processes
Annex K / Contact details
- Government Legal Department
- Gallagher Bassett
- NOMS Litigation Team
- Safer Custody Team
- Governance and Strategy Group, Directorate of Probation
- Offender Management and Public Protection Group
- Civil Service HR Casework Team
1. Executive summary
Background
1.1 This instruction updates arrangements for the management of litigation claims, including both private law claims and judicial reviews. It updates existing policy and guidance to reflect the outcomes of recent reviews of the handling of litigation in NOMS.
1.2 The majority of claims that NOMS receives are in relation to public sector prisons (PSP). However there are also a number of claims received that concern the National Probation Service (NPS) and HQ functions.
1.3 NOMS defends all claims robustly, as far as the evidence allows. This includes those that give rise to important points of principle. NOMS will settle cases only if there are compelling reasons why this is appropriate in all circumstances of the particular case. NOMS will consider the best possible outcome for the taxpayer and seek to discourage a compensation culture. Unsuccessful litigants will be pursued for NOMS’ legal costs where possible. If there is evidence that the claim has not been brought in good faith, enquiries will be made and action taken, if appropriate.
1.4 The site in which the incident occurred owns the claim (except in certain circumstances, such as claims with a national policy implication), although arrangements to manage the claim may involve site, regional and headquarters based staff. Where claims are submitted which challenge specific policy areas, rather than the application of policy, the headquarters based national lead for the policy area will own the case.
Desired outcomes
1.5 To reduce spend on legal costs, damages and adverse costs and protect NOMS’ reputation. The document also aims to ensure a consistent and efficient approach to managing litigation claims, which will enable NOMS to identify common themes and review practice to reduce the risk of future claims.
Application
1.6 Caseworker refers to staff with responsibility for day-to-day management of litigation claims and providing instructions to claims handlers or legal advisers. Caseworkers are employed in a range of roles and the term does not refer to a job description or grade. In PSP, they may be based in the prisons or the regions. In NPS, they may be the Business Manager in the NPS Divisional Office, or another nominated individual. In a few instances Caseworkers may also be based in headquarters; these are often policy owners or commissioning staff instructing on litigation that has a wider policy implication in relation to their area of expertise. Sections 2 and 3 apply to Caseworkers.
1.7 Site refers to an establishment, regional HMPS hub, or NPS division.
1.8 Instructing party refers to the Governor, Deputy Director of Probation Governance and Strategy, Director of NOMS in Wales, Head of NOMS HQ Group, policy lead or other party who has overall responsibility for the litigation.
1.9 Claims handler refers to the NOMS appointed claims handler. Details of which organisation NOMS has appointed, and how to contact them, can be found in Annex K.
1.10 Legal adviser refers to the NOMS appointed legal adviser. This is the Government Legal Department (GLD). Their contact details can be found in Annex K.
1.11 For NPS cases, this instruction only applies to incidents occurring on or after 1st June 2014. For any probation cases concerning an incident that occurred before this date, exceptional guidance is in place; this can be obtained from the Governance and Strategy Group, Directorate of Probation.
1.12 The handling instructions for private law claims do not apply to litigation or inquests arising out of a death in custody or approved premise; nor do they apply to claims relating to investigations under Article 2 or 3 of the European Convention of Human Rights. Further information on these can be found in paragraphs 2.52-2.55.
1.13 Sections 1.15 and 2.4 are the only sections of this policy instruction that apply to Controllers of private prisons.
Mandatory actions
1.14 Governors, Deputy Directors of Custody (DDC), Deputy Directors of Probation (DDP), Deputy Director of Probation Governance and Strategy and Heads of Group must ensure that staff with responsibility for managing litigation and instructing claims handlers or legal advisers (caseworkers) manage these in accordance with chapters 2 and 3 of this instruction.
1.15 Where Controllers of private sector prisons are named as co-defendants with the contracted prison, they, or another nominated individual within their team, must liaise with the relevant senior contract manager to establish who will be acting as the caseworker.
1.16 For all cases, apart from NPS, the relevant budget manager on the site, such as Head of Corporate Service or Business Hub Manager, must check with the caseworker that appropriate charges for legal services have been made. For NPS cases, the Deputy Director of Probation Governance and Strategy, or their nominated delegate, must check with the caseworker that correct charges for legal services have been made.
Resource Impact
1.17 This instruction replaces PSI 02/2013 – AI 01/2013 Claims Handling and requires no additional resource.
(Signed)
Digby Griffith
Director National Operational Services, NOMS
2. Operational instructions
2.1 All staff must be aware that NOMS receives litigation and are required to help the caseworkers, as far as possible, with their requests for evidence and information. This must be done as soon as reasonably possible or within an agreed timescale. All staff must also be aware that they may be required to give evidence, including in court as witnesses.
2.2 Caseworkers handling a case must:
· ensure all litigation is referred to claims handlers or legal advisers as soon as notification is received and in any event within the relevant deadline (see Annex B);
· not negotiate and agree compensation directly at a local level with Claimants who bring civil litigation claims, whether during legal proceedings or at the pre-action stage.
· record all private and public law claims on the NOMS approved IT case management system, monitor and record progress of claims and the current financial position in line with Financial Management and Control (FM&C) guidance. In certain instances NOMS Litigation Team may undertake this on behalf of the caseworker. This would usually be where the case is being managed by teams in Headquarters.
· act as the single point of contact for the claim, working with colleagues to research the incident giving rise to the claim, identify documents relevant to the claim and ensure these are provided to the claims handlers or legal advisers as requested;
· contact the Civil Service HR Casework team if in receipt of a staff claim to check whether there is an associated employment claim, ensuring a coordinated approach to managing these;
· assist in identifying relevant policies and witnesses to defend the claim;
· carry out the necessary disclosure exercises under guidance from the claims handler or legal adviser;
· operate within the timescales laid out either in the Civil Procedure Rules or by the Claims Portal, as guided on a case by case basis by the claims handlers or legal advisers (see Annex B);
· obtain the appropriate delegated financial authority before instructing the claims handlers or legal advisers to negotiate settlement, where the instructing parties have decided to do so;
· check and sign documents as requested by the legal advisors (e.g. disclosure statements, defence documents);
· check the summary of charges as provided by Shared Services Centre for bills for legal services.
2.3 Instructing parties must decide whether to defend or settle a case and, if settling, whether to admit liability.
2.4 Where Controllers of private sector prisons are named as co-defendants with the contracted prison, they, or another nominated individual within their team, must liaise with the relevant senior contract manager to establish who will be acting as the caseworker.
2.5 For all cases, apart from NPS, the relevant budget manager in the site, such as Head of Corporate Service or Business Hub Manager, must check with the caseworker that appropriate charges for legal services have been made. For NPS cases, the Deputy Director of Probation Governance and Strategy, or their nominated delegate, must check with the caseworker that correct charges for legal services have been made.
Handling private law claims
2.6 The handling guidance for private law claims does not apply to claims arising from deaths in custody or approved premises, or claims relating to investigations under Article 2 or 3 of the European Convention of Human Rights. Further guidance can be found in 2.52-2.55 of this policy.
2.7 Guidance on private law claims and a flowchart of the handling process can be found in Annex A.
Pre-action
2.8 A pre-action letter or Claim Notification Form (CNF) will be sent by the Claimant, or their legal representative, to a site, Government Legal Department (GLD), claims handler or NOMS HQ. CNFs can also be received via the Claims Portal online – please be aware of the shortened deadlines (see Annex B) if the Claims Portal is used. Pre-action letters or CNFs received must be immediately forwarded on to the caseworker responsible for that site. If the claim relates to a prison that is no longer in operation, the letter must be forwarded to NOMS Litigation Team. If the claim relates to a probation incident that occurred between 1st June 2014 and 1st February 2015, the Governance and Strategy Group, Directorate of Probation, should be contacted.
· The caseworker must determine whether the claim is suitable for handling by a claims handler or whether to instruct GLD to act on their behalf and forward the letter on to them as necessary. The claim should be sifted in accordance to the criteria in Annex C.
· For a staff claim, the caseworker must also contact the Civil Service HR casework team to ascertain whether there is an associated employment claim.
· If a letter is received by the claims handler or GLD and they are instructed to act for NOMS, they will issue a letter of acknowledgement to the Claimant / Claimant’s representatives and inform the site. If the letter is sent to a site or NOMS HQ, the relevant caseworker must issue a letter of acknowledgment, which must not include any admission of liability.