The Litigation Series – Week 18 – Going To Trial
In the final blog in our Litigation Series, we look at what happens if your case goes to court. Most clinical negligence cases settle through alternative dispute resolution such as negotiation, without the matter being taken to full trial in court before a judge. However, sometimes cases do go all the way to trial, and it’s important to know about this process as it can be daunting if you have not been through it before.
What is the aim of a trial?
The aim of a civil trial is to resolve disputes between the Claimant and Defendant and determine factual and legal issues of breach of duty, liability, causation and quantum (amount of damages). Both parties will prepare their case in advance, and obtain relevant evidence which will be tested and put before the judge who will ultimately decide the outcome. It can take a long time to get to trial and it is a very expensive process to prepare, which is why cases are often settled out of court.
Which court and which judge?
Medical negligence cases can be heard in the County Court, by a deputy district or circuit judge, or in the High Court by a High Court Judge or Master. The location will depend on the several factors, such as the complexity of your claim and the value of the case, also known as quantum. The more complex and higher value the case is, the more likely it will be referred to a High Court.
There are various county courts around London and beyond, and you will be told which your case has been listed in in advance so that you are able to make travel arrangements. The location of the court will be decided in a case management hearing, but will likely be in a county court closest to where you are living. However in more complex cases which have been allocated to the High Court, this may be in the Royal Courts of Justice in London or a High Court in another major city.
Is there a jury?
Civil cases do not have a jury of laypeople. The issues in the case will be decided by the judge or Master alone.
How long do they last?
The length of a trial depends on the complexity of the claim. If the issues are straightforward and there are few or no witnesses and experts providing evidence, then it can be as short as a morning or afternoon. This is because some of the undisputed evidence can be agreed in advance of the trial, which saves time. However, it is likely that a straightforward case with uncontested evidence will be settled before trial in order to save costs.
Alternatively, for complex claims there may be multiple witnesses and experts produced by both sides to give evidence to strengthen their case. The evidence of each of these witnesses will be tested by the other party before the judge, which can be a time consuming process. In these cases, it is possible for a trial to last several weeks.
Does the claimant need to attend every day?
You as the Claimant will be required to attend your trial on every day that you are giving your own evidence. If you do not wish or feel unable to attend every day, for example if it is a long trial, this is something to discuss with your solicitor. It is likely you will be advised to attend every day if at all possible so that you know what is going on in your own case and can provide instructions to your legal representative where necessary. However, there may be some situations where there is flexibility for you not to attend every day, if for example you have immovable commitments or health issues make it difficult for you to spend long stretches in court. When you do attend, it is advisable that you dress neatly, but comfortably, so you are in a good position to put forward your evidence.
Occasionally trials can be remote, and attended by video link or telephone. This was utilised during the Covid pandemic, particularly for Claimants that were shielding. However, there is no guarantee that your trial can be remote and your solicitor will need to make a formal request to the courts if you would like to explore this option, so it is good to raise it as early as possible.
Who will be there?
Once you arrive for your trial, there will be various people who also attend. If you have instructed a solicitor, they will be there to represent you. There may also be a barrister who will advocate on your behalf, which means presenting your case to the judge. If the defendant(s) is represented, their solicitors and barrister (also known as Counsel) will also be present.
Each party may have obtained evidence from witnesses and experts, in which case they will likely attend to give evidence and be questioned. The witnesses and experts may not attend every day due to other commitments, but will need to attend on the day they give evidence.
Civil trials are also open to the public, so it is a possibility members of the public or press may attend. This will depend on public awareness of your case.
Once all parties are in attendance, they will be called to the court room. Typically the Claimant and their representatives sit on one side of the room, with the Defendant and their representatives on the other side. There are usually several rows of benches facing the front, where the judge and their clerk will sit. There will be a transcript taken of the trial. There is also a public gallery for any members of the public or press in attendance.
Once everyone is seated, the Judge will enter. All present stand when the judge enters, and they will ask you to be seated. Following this the clerk will announce your case and the judge may say a few opening words.
The Claimant’s advocate then opens the case. They may summarise the issues to the judge, who will have been provided with the trial bundle in advance and so will be familiar with your case. Next, you as the Claimant will be invited to give your evidence in chief. First you will need to give an oath that you will tell the truth during your examination. Usually in civil cases, you will have prepared and signed a statement in advance which is submitted to the defendant and the court. With the judge’s permission, this statement can be used as your evidence in chief and saves you from having to go through the timeline of events verbally. Your lawyer will then ask you any questions to clarify what you have written in your statement.
The Defendant’s advocate then has the opportunity to cross-examine you. This means they can ask you any questions about your evidence in chief. Your solicitor will help to prepare you in advance for the kind of questions you might expect. The judge also may ask some of their own questions. Finally, your advocate has the opportunity to ask any final questions. This will mark the end of your evidence and direct participation in the trial.
Following this, the Defendant will give their evidence in chief. Similarly to with your evidence, they will be asked questions by their advocate, before being cross-examined by the Claimant’s advocate. Any questions from the judge will be put and their evidence in chief will also be concluded.
After the Claimant and Defendant have given their evidence, there is an opportunity for each party to call any witnesses. Not every case will have relevant witnesses, but those that do can put forward witness evidence and there is the opportunity for questions.
A key part of any clinical negligence trial is the evidence of experts. This is because they have a medical understanding of what went wrong, who acted negligently and breached their duty of care, and the extent to which (if at all) this caused the outcome or injury to you, the Claimant. Each side is likely to have submitted expert evidence in advance, and sometimes joint expert evidence will be agreed. If there are different experts for the Claimant and Defendant, they will also be put on the stand to be examined on the reports they provided and the conclusions they have drawn about your case.
Finally, once all the evidence has been put forward and tested, each party can make closing submissions to the judge. This is to summarise the most important points in your case that have been raised and is a final opportunity to persuade the judge to rule in your favour. You cannot bring up anything new in these submissions.
The judge will then have the opportunity to consider all the evidence put forward against the issues in the case. It is likely that they will take some time to do this in their chambers. Depending on the complexity of the case and court time, the judge might reserve their judgment for another day.
Finally, the judge will hand down their judgment and reasons to the parties. High Court judgments are usually published and judgments from lower courts can be requested by a member of the public. An order will be drafted which states the judge’s final decisions in the case.
Our medical negligence solicitors specialise in helping clients through complex and high value claims. The majority of our cases settle through alternative dispute resolution such as negotiation. If your case goes to a trial, our medical negligence experts will be there with you and support you through the trial. Our focus is always to get you the justice you deserve and to achieve the best possible resolution.
To speak to one of our specialists call 0808 252 5231 or request a call back online.