What happens if your claim is litigated?

Very few clinical negligence cases ever go to court because they’re usually settled before that point. NHS Resolution (which deals with claims made against the NHS) states that 96% of the claims it deals with are settled before reaching court, either because a settlement has been reached or the claim has been dropped.

If your claim goes to court, it will usually be because your solicitor thinks it’s the best way to prove negligence or because they don’t think you’ve been offered enough compensation for the seriousness of your injury.

Your claim will usually be made through the ‘pre-action protocol’. This sets out the rules and guidelines for making a claim so it’s as simple and stress-free as possible. It’s also designed to minimise the necessary changes of legislation – by resolving as many problems as possible without actually needing to go to court.

As part of the ‘pre-action protocol’, your claim starts with a letter sent by your solicitor outlining your claim to the other party. They’ll also ask for access to medical records (according to section 7 of the Data Protection Act 1998, you have a right to request such access and to have the records in question provided within 40 days).

Once these records have been looked over by a medical expert, your solicitor will send the defendant a ‘letter of claim’. This letter will summarise the negligence and will include general details of the case such as a description of your injuries and details of the costs.

The other party has 14 days to reply and should give a detailed response within four months.

They’ll respond in one of the following ways:

• A full denial of the claim, or…
• Admitting part or parts of the claim, or…
• Making an offer to settle, either with or without admitting negligence.

In some cases, your solicitor might even be able to speak directly to the people representing the other party to reach a settlement that suits both sides and avoids a court hearing.

Your solicitor will let you know whether any settlement offered is worth accepting or whether they think you’d be offered more in court – they’ll have experience in enough cases to know when the defendant is trying to persuade you to settle for less than you deserve.

If an agreement hasn’t been reached, your solicitor will start formal legal proceedings by sending the defendant a N1 claim form, which is issued by the court.

This form includes details of both parties and your injuries, and a statement of the compensation your solicitor is trying to get for you.

Your solicitor will also send a copy of any expert medical opinions and a ‘Schedule of Details of Past and Future Expenses and Losses’, which sets out any loss of earnings and predicted future expenses. The defendant will then file a ‘defence’ of the claim with the court.

The case will be heard in either the County Court or the High Court, depending on the value of the claim and its complexity.

The court case will open with your barrister setting out your case, followed by them calling witnesses who will be questioned based on their written statements.

Both sides will call expert witnesses to back up their case, who will give their opinion on whether the medical care given was below the expected standard, whether you suffered ‘avoidable harm’ and what your condition is now and going forward.

The case will close with barristers for both sides giving statements summarising your case, and then the judge will retire to consider their verdict.

Most clinical negligence cases take between two days and a week, although more serious claims – such as those involving a life-changing injury – can take much longer.

The more complex cases are sometimes divided into two separate parts: one to determine who is responsible for the injury and another to determine the amount of compensation.

The Judge will write to both sides to let you know the decision. If your case is successful, then the amount of compensation will be calculated based on two parts:

• The pain, suffering and loss of amenity you have experienced (calculated regarding the Judicial College Guidelines: The Assessment of General Damages in Personal Injury Cases, now in its 15th Edition).
• Any financial losses arising from the injury, either now or in the future. These might include loss of earnings, loss of pension, costs of care, adaptations needed for the home and future care needs.

The final figure may be given as a lump sum, take the form of regular payments throughout your life, or be a combination of the two.

Because most negligence solicitors work on a no win no fee agreement, you’ll be protected from the risk of being out of pocket if your claim isn’t successful. Insurance taken out at the start of the process will cover the other side’s costs if you should lose.

Medical negligence claims are complicated; some might go to court if neither party agrees. However, even though these claims can present some issues, most insurance providers or resolution centres don’t want to go to trial.

Your solicitor might advise initiating court proceedings if the negligent party isn’t willing to offer enough compensation. This can sometimes be beneficial as you might secure a higher award.

The NHS usually attempts to settle cases without court action, but it’s not always possible. For example, if NHS Resolution feels the amount your solicitor is asking for is too much, they might decide court is the best option.

Yes. In fact, many medical negligence claims go through the High Court, as they have experienced judges who know how to handle the process.

However, whether or not the High Court hears your case depends on its complexity and whether both parties have explored all avenues to reach an agreement. The solicitor will inform you of the proceedings and represent you in court.