The Litigation Series – Week 17 – Preparing For Trial

In weeks 15 and 16 of the Litigation Series we looked at settlement of claims before they get to trial, and it is helpful to remind ourselves that very rarely do clinical negligence cases go to trial. There is an obligation on both parties to cooperate and to seek to settle cases without the need to go to trial, but there are some cases where this is simply not possible. Thus one of the best pieces of advice I received as a trainee solicitor was to always “think trial”, even at the very earliest stages of the case.

In summary, there is a lot of work that needs to be done in preparing for trial.

As outlined previously, a case that is issued and served will be case managed by the court, and a set of detailed Directions will have been ordered, setting out all the necessary steps to be taken before the case gets to trial. Sometimes the court will order a “pre-trial review” where the parties will appear before the judge to discuss any issues that need to be resolved prior to trial. A recent example which I attended involved a hearing to discuss the ground rules for cross-examining vulnerable witnesses, and to resolve an area of dispute about which medical records could be used during the trial.

Preparation for Trial

One of the procedural steps that needs to be taken is the preparation and filing of a listing questionnaire, with payment of the relevant court fee. This must be done at least eight weeks before the trial date.

The listing questionnaire will confirm whether there are any outstanding steps which need to be taken before trial and whether either party intends to make an Application to the court for any reason. It also gives the court information about the availability of witnesses and experts, and counsel (the barrister who will be representing the claimant), in case there are any dates they cannot attend. If certain facilities such as the need for disabled access or interpreters are required this information is given to the court.

Along with the listing questionnaire the parties should attach a proposed timetable for trial, if possible one that is agreed between the parties. It can be difficult to draft an accurate timetable to trial at this stage, particularly if there are still some outstanding directions to comply with. If the case is not subject to a cost budget the parties should also attach an estimate of costs.

There will then be a period of intense work making sure that all directions are complied with, and assessing the implications of any further work which is undertaken. For example, if expert discussions take place this may influence how the preparation to trial continues. Essentially the case must be fully prepared and ready before the trial date.

Counsel will be formally instructed to represent the claimant, although they will have been involved in the case from a much earlier stage.

Trial bundle

Another very important step is to prepare a trial bundle, in other words all of the documents which the court, experts and witnesses will require: the index to the documents required for the trial bundle is usually agreed between the parties, although there may be areas of dispute which require the court to resolve, sometimes at first day of trial. Preparing a large trial bundle is a very intensive piece of work, it is not something that can be left until the last minute.

During the pandemic there was a move towards remote court hearings, with electronic trial bundles. As the court system opens up it is becoming increasingly common to have trials in person again, but either way full and accurate bundles of all the papers required must be provided to the Court, both parties, and there should be a set of documents available for the witnesses.

Can I still settle my case before the Trial if it has been already listed?

It is still possible to settle the case before going to trial, even right up to the date of trial (or during it), and if the parties are able to settle prior to the trial date then they must let the court know without delay so they can remove the trial from the court diary.

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.