Medical Negligence and Personal Injury claims: what you need to know podcast series
In the sixth episode of our Medical Negligence and Personal Injury claims: what you need to know podcast, Laura Sylvester and Aideen McGarry continue our series on what is involved with bringing a clinical negligence or personal injury claim by talking about the costs and case management conference.
If you would like to download this podcast, please click here.
- Episode 1 - Limitation period
- Episode 2 - Funding a claim (part 1)
- Episode 3 - Funding a claim (part 2)
- Episode 4 - Initial stages of a claim
- Episode 5 - Issue Service and CCMC
READ THE TRANSCRIPTION
Hello, I am Laura Sylvester, Legal Counsel, in the Medical Negligence in the Personal Injury department.
And I am Aideen McGary, Associate, in the Medical Negligence in 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 the costs and case management conference.
Once the defense has been served, the court will usually direct the parties to follow directions, questionnaires and draft directions. This enables the parties to indicate what type of timetable they want the Court to make for the preparation of the case. The parties are expected to try and agree the directions between themselves. The court will then fix a date for what is called a costs and case management conference, which will be attended by legal representatives of both parties. This is a hearing at which a procedural judge called Master will consider each parties.
Proposed directions and make a directions order. This is a detailed timetable for the preparation of the case to trial, and he will also fix a trial date.
The parties can apply to court to amend the directions or for further directions as the case progresses, but it is expensive to do so. Its standard practice to allow the parties to agree extensions of time of up to 28 days to comply with the deadlines imposed in the directions order. An extension longer than that will require a court application. A court would be very floated. Grand extensions of time or make any new directions which will threaten the date set down for trial.
Unless the case is excluded from the cost budgeting process, both parties will need to file and serve cost budgets in advance of the costs and case management conference. The budgets are prepared by cost lawyers and set out all of the incurred cost to date together with estimates for the future costs to be incurred separated into different phases so that it is clear which part of the timetable the costs relate to.
The cost not only includes solicitors costs but also counsels, fees, court fees and disbursements, such as experts fees to the parties, will try to agree their budgets in advance of the hearing.
But this is often difficult to achieve if either or both budgets are not agreed, the master will go through the budgets at the hearing where each party is invited to make representations to the judge about the costs included in the budgets. The judge will then order what level of costs are allowed.
It is important to ensure that you have included sufficient costs for each phase so that you have enough legal costs available to investigate the case and comply with the directions order. It is possible to apply at a later date to vary the budget, but this is inevitably expensive and incurs further costs, and there is no guarantee the judge will allow this.
The budgets are very technical documents and your sister will take you through the budget in detail to ensure you're happy with what has been included.
One of the most important decisions by case management, which is particularly relevant clinical negligence claims, is by their timetable the case through to trial on all issues. So that's liability or negligence plus quantum or value, or whether to director split trial dealing with liability 1st and then quantification only if a claimant is successful in proving liability. The reason a court would do this is to save the parties time and money valuing the claim if it turns out to be unnecessary.
As the claimant fails to prove the defendant with negligent if the split trial is ordered, the first trial will be to establish whether there was a breach of duty on the part of the defendant which caused the claimants injury. If the claimant is successful, a second trial will take place to determine the level of compensation the defendant should pay.
At the split, traders ordered at the MCMC, the directions order will deal only with preparing the parties cases on liability and causation.
This is a technically complex stage in the claim, and your solicitor will be able to advise you further about the process and what is required. 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 firstname.lastname@example.org or on 02078141200.
Thank you for listening.
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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