What happens if your claim is litigated?
Court forms The solicitor commences proceedings by issuing a claims form which must be served on the defendant within four months. This may give particulars of your claim or these may be served separately. Once the claim form has been issued it should be served on the defendant personally - not his insurers which would probably result in delay.The defence will now, quite possibly for the first time, instruct their own solicitors who may want to slow things down so that they can investigate the case. Your solicitor should move the action on as speedily as possible keeping up pressure on the defence. This is where skills as a litigator are essential. Without being discourteous the solicitor should not put up with any delaying tactics, using court orders where necessary and seeking costs wherever possible. If it is believed that the defence has no case application may be made to the court for summary judgment. Another strategy could be an offer to settle on the basis of a medical report on your condition and prognosis (termed a Part 36 offer under the Civil Procedure Rules). The court forms in a clinical negligence case have been made more "user friendly" under the Civil Procedure Rules but they can still appear complex and technical to non-lawyers. Your particulars of claim, which must be verified by a statement of truth, will set out the duty of care owed to you, state the relevant facts surrounding your medical treatment, provide particulars of the alleged negligence, contend that that breach of duty caused your damage and loss and, finally, claim damages and interest. It is served on the defence with a medical report and statement listing your special damages (these are losses you have actually incurred as a result of the accident, such as travel, special equipment etc as opposed to general damages for pain and suffering). The defendant has 28 days (High Court) or 14 days (county court) to serve a defence. This will probably be the time when there will be a searching of hearts and minds by the defence and it will be up to your solicitor to keep the pressure on for settlement. The defence may make a payment into court, or an offer to do so, in settlement of your claim. In the unlikely event that a defence is not served in due time your solicitor can apply for judgment in default.The defence may apply for more details of your claim if they do not think that you have supplied enough information. It will be up to your solicitor to recognise those applications that are genuine and which must be answered and those that are merely delaying tactics. The defence may also require you to have a medical examination by their own doctor. Technically you are entitled to refuse but if you do so the court will almost certainly stay your action until you do agree. The defence will state what, in the defence view, the doctors actually did, may put the claimant to proof of allegations of fact and will probably deny the alleged negligence, or contend that, if there was negligence, it did not cause you loss. Once served on your solicitor copies will be sent to counsel and your medical expert for consideration. Your solicitor will also see whether further information is required from the defence. At this stage the witnesses' statements will be prepared, including your own based on your first proof as amended in the light of subsequent knowledge. Case management The management of your case will now be in the hands of the court. Liaising with medical experts and counsel on availability dates, your solicitor should apply to the court for directions as to how your case should be run up to the trial. On this application, which will describe the action and the issues which it raises, the court will issue directions such as whether the parties should give further details, that each side should exchange a list of relevant documents in their possession, inspection of those documents, exchange of witness statements, number of witnesses, meeting of experts and date of trial. The court has extensive case management powers under the Civil Procedure Rules. For example, it may direct that a single expert be appointed to assist the court although this power is unlikely to be exercised in a clinical negligence case of any value. It may direct mediation as a preliminary to court proceedings. The court's duty is to deal with the case justly, i.e. ensure that the parties are on an equal footing, save expenses and deal with the case in a way which is proportional to the value of the claim, importance of the case, complexities of the issues and financial position of each party. The court must ensure that the claim is dealt with expeditiously and must allot an appropriate share of the court's resources. Mediation If mediation is ordered in your case that process will get under way once a suitable independent mediator, preferably with experience in clinical negligence, is found and a meeting arranged, a matter of a few weeks usually. The proceedings ar