The Litigation Series – Week 10: What Happens Next In Defended Medical Negligence Claims

In week 9 of the Litigation Series, we explained the process of issuing (commencing) Court proceedings. This blog also explored the process of the Claimant serving their Particulars of Claim, which is the document setting out the allegations made, and the Defendant serving their Defence, the document which responds to each allegation made by the Claimant.

If the claim is being defended (i.e. the Defendant has not admitted liability in response to the allegations made by the Claimant) then the next stage would be for the Court to set the timetable for each stage in the litigation process, up until any trial. This is done at a Costs and Case Management Conference (CCMC) which I have explained further below.

Preparing for the CCMC

After the Defendant has filed their Defence with the Court, the Court will subsequently set a hearing date for the CCMC. In advance of the hearing date, the parties are expected to try and agree, as far as possible, a proposed timetable for the following phases to take place:

1. Exchanging disclosure (all relevant documents in a claim).
2. Exchanging witness evidence.
3. The types of experts (specifying their discipline) on which each party seeks to rely, the issues that the experts will comment on (i.e. breach, causation and condition and prognosis) and the date on which the liability expert evidence will be exchanged. Deadlines will also be set for meetings to take place between the Claimant’s and Defendant’s experts in cases where they are not in agreement, and for a “joint statement” to subsequently be prepared.
4. The date on which the Claimant’s “Schedule of Loss” and the Defendant’s “Counter Schedule” will be served – these are the documents that outline each party’s assessment of the value (quantum) of the claim in detail. This is usually a sequential process, with the Claimant serving their quantum evidence (supported by expert and lay evidence), followed by the Defendant.
5. A window in which the trial will take place and estimated length of the trial.
6. As the Court always encourages parties to attempt to settle before trial, the parties should also seek to agree to the possibility of engaging in Alternative Dispute Resolution (ADR).

The above covers the broad bases of most claims, however depending on the circumstances or complexity of the claim, there may be additional matters included at this stage.

As well as trying to agree the dates of the above stages (which are called “Directions”) ahead of the CCMC, the parties must also try and agree a document providing a summary of the case (Case Summary) and hearing bundle. Both of these are usually prepared by the Claimant and sent to the Defendant for their approval.

In most cases (there are some limited exceptions) each party is required to put forward a budget of their estimated costs. This costs budget will include the costs already incurred in the case so far, as well as an estimate for the future costs likely to be incurred for each phase. Given their complexity, the parties will often enlist the help of a Costs Draftsman to prepare the budget. The parties should also seek to agree each of their respective costs budgets and any negotiations usually take place between each of the party’s respective Costs Draftsmen.

If the above matters can be agreed between the parties, then there may be no need for the CCMC to take place, and the parties can ask the Court to approve the agreed Directions/Budgets and to vacate (remove from the Court diary) the hearing.

The CCMC

At the CCMC itself, the parties will explore the matters still in dispute with the judge or Master. Each party will make their submissions in support of what it is they seek, then the judge or Master will make a decision on the outstanding issues.

A Court Order is then prepared which outlines the judge or Master’s decisions, and sealed. This is called the Directions Order and it is the document that sets out the Court timetable that the parties are expected to comply with all the way to trial. There are serious consequences if either party fails to comply with any deadline outlined in the Directions Order.

Despite a timetable being set, it is still possible for the parties to settle the claim at any time before the trial.

Split vs Full Trial

All of the above outlines the position in cases where there is expected to be a “full” trial at the end of the case.

This means that all issues are to be dealt with and heard together. In certain complex claims, such as brain injury claims, the Court may decide that a “split” trial is more appropriate. This means that the case is dealt with in two stages where: (1) the issues of breach of duty and causation (discussed in Week 1) are dealt with first, then, if the Claimant is successful in proving breach of duty and causation in this first stage, (2) condition and prognosis and quantum (discussed in Week 7) are subsequently dealt with.

One reason for the Court ordering a split trial is to take a more proportionate approach towards costs. This is because often in these more complex claims, many experts of varying disciplines are required separately to comment on breach and causation, and may also require multiple experts for the condition and prognosis and the quantification aspects of the case. If the case does not succeed on liability and causation then there is no need to incur the costs involved in quantifying the claim.

If you have suffered injuries due to medical negligence you may be entitled to compensation. For a free initial consultation with one of our medical negligence experts please call 0808 271 9413 or request a call back online.