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See You in Court!

March 13, 2018,
Andrew Gray,

In a claim for personal injury, medical negligence, professional negligence and other areas, a Claimant is required to comply with the Pre Action Protocol before they push on to issue Court proceedings.

Generally speaking, a Claimant is required to await the Defendant’s “letter of response” before issuing Court proceedings.

Here are 10 tips for a Claimant on what to expect when issuing court proceedings:-

1.       The Claim Form must state the Claimant’s full name, date of birth, address, nature of the claim and, importantly, value of the claim. The Defendant’s full details must also be included.  A Claimant will be asked to approve and sign the claim form with a Statement of Truth.

2.       In most personal injury and clinical negligence claims (not including claims for children or patients), usually the Claim Form must be received by the Court within 3 years of the date of the negligent event or three years from the date of knowledge of the event (sometimes this can be years after the event).

3.       The value stated on the Claim Form is important because the Court require a fee to be paid to the Court once the claim form is issued and the fees can be substantial.  If a Claimant is not earning income, there can sometimes be fee remission awarded by the Court so no – or very little – money is paid by the Claimant personally to issue the claim.

4.       Usually the Claim Form is not intended to include the detail of the claim and nature of the allegations – these usually follow in a separate court document called the “Particulars of Claim”.

5.       There are very strict court rules on when the Claim Form and “Particulars of Claim” must be provided to the Defendant. Generally speaking, the Defendant has 14 days to provide an “acknowledgement of service” indicating if they will defend the claim and then a further 14 days to provide a Defence. Sometimes the Defendant might seek an extension of time to file and serve their Defence.

6.       Once the Defendant provides the Defence, the court will then allocate the case to a particular court. The Court will then set a timetable for the progress of the claim, for example set deadlines for exchange of witness statements, expert reports and meeting of experts and then the trial. The Claimant and Defendant must stick to the court’s timetable and can extend deadlines by up to 28 days. If there is any major modification to the trial timetable (more than 28 days) or the other party refuses an extension, the party requesting the extension must make the application to the Court and there will often be a hearing on this matter. The Claimant will not be expected to attend any hearing dealing with procedural matters before the trial takes place.

7.       Once the trial is set it is very difficult to move any deadlines which may prejudice the trial date.  Trials can sometimes be adjourned although this is very rare.

8.       The timeframe between issuing the Claim in Court to the time of the trial can take many months – sometimes years – depending on the complexity and value of the claim.

9.       During the timetable of events set by the Court the Defendant may wish to settle the claim. If the claim settles, the Claimant will not be required to give evidence at trial.

10.   If a Claimant unreasonably refuses settlement offers by the Defendant or refuses genuine offers to mediate, because the Claimant wants their day in court, it is likely that the Judge will make adverse costs orders against the Claimant (i.e. financially penalise the Claimant). Therefore, Claimants are encouraged to look at alternative ways of resolving claims, as are Defendants too, in the hope that fewer claims reach trial which can be stressful for all parties concerned.

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