The Litigation Series – Week 16: What happens when I settle my medical negligence claim?
Very few medical negligence cases are decided at trial; the majority of successful claims end with a negotiated settlement. Settlement can take place before (pre-action) or after proceedings have been issued.
If a settlement is reached pre-action, the settlement can be recorded in correspondence between the parties or, in more complicated cases, a settlement agreement. This is particularly so if the case has settled at mediation or a formal meeting, as sometimes there are particularly complex issues discussed where it is helpful to have an accurate record of the agreed settlement terms.
Where a settlement is reached after the claim has been issued in court, the parties are required to draw up a consent order setting out the terms of the settlement. As long as the order falls within certain categories of order listed in the court rules the order will then be sealed by a court officer. This is a formality: although the court can withhold its approval from a consent order, in practice the matter will only be referred to a judge if the consent order appears to be incorrect or is unclear.
The settlement will often include an interim payment of costs which will be agreed by the parties at a later date (see below)
The settlement procedure for protected parties
In general, parties are free to settle their intended or pending proceedings without the approval of the court. However, there are exceptions to this, including settlement of disputes involving children and for protected parties (i.e. people lacking the mental capacity to conduct litigation). In these cases, the parties can do the majority of the work in settling the case, but the final agreement needs to be approved by a judge as a safeguarding step. It ensures that the matter has been settled in the best interests of the child or vulnerable person.
Who pays the costs of a medical negligence claim?
If you win your case the Defendant will usually be ordered to pay your reasonable costs for pursuing the litigation against them. A formal bill will be drawn up and served and there is usually a period of negotiation between costs lawyers instructed by each party to see if the costs can be agreed. If costs cannot be agreed it may be necessary to ask the Court to assess these, and because this process can take some time it is usual practice to ask the defendant to make a payment on account of costs whilst this takes place. An agreement to make an interim payment on account of costs can either be incorporated into the order, or agreed between the parties in correspondence.