The Litigation Series – Week 8: Early Letter Of Notification And A Full Letter Of Claim

This week in the Litigation series, we are exploring the process and protocol to putting your case forward to the Defendant. When dealing with a clinical negligence claim, the protocol that Claimant solicitors would need to comply with is known as the Pre-Action Protocol of Clinical Disputes. This is the protocol to use for claims against hospitals, GPs, dentists and other healthcare providers (both NHS and private) which involve an injury that is alleged to be the result of clinical negligence. In addition to this protocol, there is a Practice Direction on pre-action conduct, which describes the conduct the court will normally expect of the prospective parties prior to the start of proceedings.

In many cases the potential Defendant will be aware of the possibility of a claim, however it’s very helpful to give a potential Defendant early notification (known as a Letter of Notification) before your solicitor begins a detailed investigations into the claim. Your solicitor may wish to serve a Letter of Notification on the Defendant and the Defendant should acknowledge receipt within 14 days and identify who will be dealing with the matter. The benefit of serving an early Letter of Notification is to potentially narrow the issues between the parties and to facilitate an early resolution. If we are of the view that liability is very likely to be established from the outset, we will suggest serving a Letter of Notification to invite early admissions.

Alternatively, if your claim requires further investigation and potentially expert input, as explored by my colleague in week 6 of the series, then a Letter of Claim will normally be prepared after expert evidence is obtained and if it is supportive. The purpose of a Letter of Claim is to:

1. Notify the likely Defendant of the proposed claim.
2. To set out sufficient information and allegations to enable them to assess liability and the likely value and heads of claim.
3. To request access to relevant documents which the Defendant might hold and which the Claimant has not yet seen.
4. Confirmation of the method of funding and (5) to obtain details of the Defendant’s insurers, if they are not already known.

In cases where the potential Defendant is an NHS Trust, a copy of the letter of claim will be sent to NHS Resolution (who provide indemnity schemes for NHS in England). GP’s may carry their own indemnity insurance from a separate organisation or the NHS Resolution may also be a provider for them (From 1 April 2019, NHS Resolution began operating a new state indemnity scheme for general practice in England called the Clinical Negligence Scheme for General Practice (CNSGP). The scheme covers clinical negligence claims arising against a GP if they occurred on or after 1 April 2019).

What should be included in a Letter of Claim/Letter of Notification?

The content and format of these letters is set out in The Pre-Action Protocol for the Resolution of Clinical Disputes. Generally a Letter of Claim should contain a clear summary of the facts on which the claim is based; the main allegations of negligence and causation; an indication of the nature of all injuries that have been sustained including current condition and prognosis where relevant and if known; an indication of other financial losses, and a request for early disclosure of relevant documentation held by the Defendant.

The Defendant then has 14 days to acknowledge the Letter of Notification and confirm where the Letter of Claim should be sent. There are instances however where unfortunately the Defendant will refuse to engage at all or they may state that they will wait for a Letter of Claim to be served. This can be frustrating but we will then take steps to prepare a Letter of Claim for you.

As explained above, the aim of a Letter of Notification is to invite early admissions, and sometimes, the Defendant will make full admissions and make offers to settle your claim or invite you to provide a schedule detailing your losses.

The Letter of Claim must be acknowledged within 14 days of receipt and the person dealing with the matter should be identified. A Letter of Response is expected within 4 months of the Letter of Claim.

If we receive a Letter of Response wherein the Defendant denies liability and causation, your claim will need to be risk assessed again and we will need to ascertain what the merits of success are. If you have supportive medical evidence, we may still take the view to continue pursuing your claim. However, if there is unsupportive evidence and consistent denials of liability and causation, we may also take the view to abandon your case. We will always re-evaluate prospects in your claim and keep you updated as to where the strengths/risks are and what we can do to assist you.

Our medical negligence solicitors have years of experience helping clients who have suffered an injury due to medical negligence. If you need legal advice, call our experts on 0808 271 9413 or request a call back online.