Medical Negligence and Personal Injury claims: what you need to know - Episode 8 - Settlement or Trial

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

In the final 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 ways in which a clinical negligence or personal injury claim can be resolved.

If you would like to download this podcast, please click here.

READ THE TRANSCRIPTION 

Laura Sylvester

Hello, I am Laura Sylvester, Partner in the Medical Negligence and Personal Injury Department

Aideen McGarry

and I am Aideen McGarry, Associate in the Medical Negligence and Personal Injury Department 

Laura Sylvester

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 ways in which a clinical negligence or personal injury claim can be resolved.

Aideen McGarry

One way in which a clinical negligence or personal injury claim may be resolved is by one of the parties making a sealed offer of settlement, called a Part 36 offer. These offers cannot be mentioned to a judge who is presiding over the substantive claim, they are only relevant to costs.

Part 36 offers are usually to settle the whole claim but can also be made in respect of specific issues, for example just to settle liability aspect of a claim.

Part 36 of the Civil Procedure Rules sets out the rules a party needs to comply with if they intend to make a part 36 offer. Provided that the rules are complied with, a part 36 offer is open for acceptance for 21 days. If an offer to settle the whole case is made and accepted the case is over.

There are potential costs risks for a party who does not accept a part 36 offer, continues with a case and does not achieve an outcome equal to or more beneficial than the offer made.

As such part 36 offers are a very useful tool to put pressure on the opposing party to settle, rather than to continue the litigation.

As well as making a part 36 offer, there is also the option to make a Calderbank offer which is another type of sealed offer i.e. only relevant to costs. Calderbank offers are used less frequently than part 36 offers when parties want more flexibility than is offered by the part 36 regime.

Parties are also of course free to make an ‘open’ offer of settlement to the other side.  

Laura Sylvester

Parties in any litigation are actively encouraged to seek what is called alternative dispute resolution, at all times in the life of the claim. Alternative dispute resolution or ADR for short, can take many forms. These include a formal mediation, where a qualified mediator will  be appointed by the parties and a formal mediation will take place. The parties will each have representation either by a Barrister or sometimes the conducting Solicitor and the Mediator will work with the parties to engender a resolution.

Parties can conduct round table meetings or joint settlement meetings, where Barristers will be instructed by both sides and they will conduct the meeting and the negotiations without a Mediator.

Equally, as Aideen has explained already, parties can make written offers to settle their cases.

It is important to remember that settlement can happen at any time during the life of the case and your Solicitor will be considering this throughout the claim.

Aideen McGarry 

If the parties do not reach a compromise either by way of written offers, or alternative dispute resolution, and both are content that their respective positions are strong, the claim will be resolved by trial in front of a judge alone.

There will often be a pre-trial review hearing to make arrangements for a trial. The standard directions made at a pre-trial review will include ordering the parties to prepare a trial bundle. This is an indexed and paginated set of the key documents the court will need to have to hand in order to determine the case at trial.

Solicitors for each party may also issue witness summons in preparation for trial, to ensure that their witnesses attend court to give evidence. A witness summons is a formal document requiring the appearance of the witness in court on a particular day. Failure to comply can lead to penalties being imposed on the witness.

The court will also order the parties to provide written open submissions called skeleton arguments in advance of the trial. These will usually be prepared by the barristers representing the parties, and summarise the issues to be determined, highlight the key evidence in support of the parties claim, refer to the relevant statutes and case law and set out their submissions as to why the court should find in their favour.   

Laura Sylvester

At the trial itself, the parties will agree a timetable – a kind of order of batting. The traditional approach is for the parties to give their opening statements on the first day and then for witness evidence to be next, then expert evidence and the final day will be the chance for the Barristers for the parties to provide closing arguments.

Typically, the Claimant will go first in each of the phases of the timetable and the Defendant will then go second. Experts of like discipline, instructed by each party will be grouped together wherever possible, so the trial judge can hear the evidence relating to one area of medicine around the same time.

Your Solicitor will guide you through the trial process and they will explain in greater detail what to expect and what the format will be.

Aideen McGarry

After a trial, a judge will usually reserve judgment, meaning they will give their judgment in writing at a later date.

Judgment in a clinical negligence or personal injury trial will usually include: a statement of the relevant legal principles, a review of the lay witness evidence given and the judge’s assessment of this, that is the judge will decide on the balance of probabilities what actually happened.

The judgment will also contain a review of the expert evidence and a discussion on which expert the judge prefers to rely on and why. The judge will then reach a conclusion about the issues to be determined incorporating further consideration of the legal principles and the application of the facts to those principles. Finally, they will make a conclusion as to who has won or lost.

A losing party has the right to apply for permission to appeal to the trial judge, and if they are refused to the Court of Appeal, who will hear the appeal if permission is granted. Appeals to the Court of Appeal are only allowed where the trial judge has made a material error of law.

For parties who lose in the Court of Appeal, there is one final opportunity to appeal to the Supreme Court which is the highest court in the land. Only cases of wider public importance will be heard by the Supreme Court and it is very rare for a clinical negligence or personal injury claim to end up here.

Laura Sylvester

Your solicitor will be able to advise you further on the process of resolving 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 02078141200.

Aideen McGarry

That concludes our podcast series on what is involved with bringing a clinical negligence or personal injury claim. We hope you enjoyed the series and found it useful. Thank you for listening!

Laura Sylvester

Thank you.

Client Case Studies

Client Case Studies

Cerebral Palsy affecting all 4 limbs settled for £27.4m

READ

Delayed diagnosis of breast cancer settled for £120,000

READ

Substantial damages awarded for a spinal cord injury during a surgical procedure

READ

Fatal claim for the widow of a teacher who died in a road traffic accident. We secured a settlement of £650,000

READ

Failure to diagnose and treat an Arterial Occlusion resulting in a lower leg amputation – settled for £715,000

READ

Cerebral Palsy claim settled in 2018 for in the region of £28m, made up of a lump sum payment and annual periodical payments

READ

Surgical negligence leading to brain injury – settled for over £5 million

READ

Fatal Accident claim - settled for £450,000

READ

Surgical negligence leading to permanent damage to spinal accessory nerve, recurrent laryngeal nerve and development of Frey’s Syndrome – settled for £490,000

READ

Failure to investigate and treat a lumbar spine disc prolapse resulting in Cauda Equina Syndrome – settled for £750,000

READ

Substantial settlement for above the knee amputation - failure to treat a peri-operative infection

READ

Failure to carry out emergency decompression surgery following an MRI scan resulting in cauda equina compression leading to permanent neurological and psychological injury – settled for £32,500

READ

Skip to content Home About Us Insights Services Contact Accessibility