Medical Negligence and Personal Injury claims: what you need to know podcast series

In the fifth episode of our Medical Negligence and Personal Injury claims: what you need to know podcast, Laura Sylvester and Aideen McGarry discuss what happens if attempts to resolve the potential claim have failed, and a decision is made to pursue the matter through the courts, then all that is left to do is to formally start the litigation.

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READ THE TRANSCRIPTION

Laura
Hello, I am Laura Sylvester, Legal Counsel in the Medical Negligence and Personal Injury Department and I am Aideen McGarry, Associate in the Medical Negligence and Personal Injury Department and today, we are going to be continuing our series on what is involved with bringing a clinical negligence or personal injury claim, by talking about issuing and serving proceedings.

Aideen
In episode 4 we spoke about the Pre-Action Protocol and the attempts parties can make to resolve a claim without recourse to the court system. However, if attempts to resolve the potential claim have failed, and a decision is made to pursue the matter through the courts, then all that is left to do is to formally start the litigation.

Clinical negligence and personal injury proceedings are formally begun when the court issues a claim form at the request of the claimant. The Civil Procedure Rules set out certain matters which must be included in the Claim Form. This includes a concise statement of the claim and the remedy sought. The Claimant must specify the level of total damages sought and the level of damages sought for pain suffering and loss of amenity.

Claims will be issued in the County Court or High Court depending on their value. Nowadays, and particularly since the covid pandemic claims are issued online rather than in person at the Court.

A fee is payable for issuing a claim which is 5% of the predicted value of the claim up to a maximum of £10,000. This is usually funded by your solicitor and claimed back from the Defendant in the event of a successful claim or your insurer in the event of an unsuccessful claim. If your financial circumstances fall within certain criteria, you may be eligible for assistance with the issue fee.

Once the claim is issued it will have a case number and a title. The Claimant and Defendant are known as parties to the proceedings. However at this stage the Defendant will not be aware of the issued claim form.

Laura
Once the claim form has been issued at Court, you will then have 4 months in which to serve this on the Defendant, together with accompanying documents, which I will explain today.

The documents that must be served alongside the Claim Form in clinical negligence and personal injury cases includes a document called Particulars of Claim, a preliminary schedule of loss and a medical report.

Aideen and I discussed in a previous podcast, the preparation of the Letter of Claim. The Particulars of Claim builds on the Letter of Claim, by setting out a more detailed explanation of the background history. The allegations of breach of duty and causation are explained in more detail, and they will reflect the particular area of law in which the claim is brought. The majority of lawyers will check the Particulars of Claim with the liability experts instructed in the claim, to ensure they are accurate and that they are supported by the experts, before serving the Particulars of Claim.

The medical report which must be served, outlines your current physical and/or psychological condition and a brief overview of your prognosis for the future. The preliminary schedule of loss I mentioned earlier, sets out brief details about the financial losses you have incurred in the past, what you consider general damages to be, which is a sum of money which represents your pain, suffering and loss of amenity, and a brief overview of your future losses.

Once you have served proceedings on the Defendant or Defendants, they will have an initial 14 days to acknowledge receipt, then a further 14 days to serve a Defence. This gives them a total of 28 days to provide their Defence. In almost every case, Defendants will seek an extension of time, because they will want to explore the issues raised with their own experts and Counsel, to ensure that they have fully explored the issues raised in the Particulars of Claim.

Aideen
So hopefully you now have a brief overview of how a clinical negligence or personal injury claim is formally started in court.

It is important to remember that just because your case is started in court it does not mean that it will inevitably end up going to trial. The great majority of cases which are issued will be resolved by agreement between the parties before the case goes to trial. This is because of the high cost of litigating a claim to trial.

Your solicitor will be able to advise you further on the process of issuing and serving a claim. If you or a member of your family would like to discuss any of the issues raised in this podcast, please contact one of our specialist solicitors on enquiries@kingsleynapley.co.uk or on 0207 8141 200.

 

ABOUT THE SPEAKERS

Laura Sylvester is a Senior Associate in the Medical Negligence and Personal Injury team.  She has a broad range of expertise, with experience including brain injury claims relating to children with cerebral palsy;  colorectal/abdominal and gynaecology claims; and late diagnosis of infection cases and fatal claims.  Laura acts for children and adults from all walks of life and she has received praise from clients about her professionalism, together with her ability to act in a sympathetic and supportive manner and she has experience of guiding clients through the legal process whilst understanding the needs of her clients.

Aideen McGarry is an Associate in the Medical Negligence and Personal Injury team. Aideen has experience working on high-value clinical negligence and personal injury claims. She has acted for clients in claims against their GP, hospital or health providers in relation to injuries suffered as a result of wrong treatment, surgical error, delay or missed diagnosis. Aideen has also represented clients injured in road traffic accidents, accidents at work and accidents on public property.

 

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