The Courts: Procedure and damages for negligence cases An outline of the procedure of a negligence case up to trial

Lesson objectives I will be able to describe the procedure from the start of court action to trial I will be able to apply this to a given situation

Starting a negligence case Once it has been established that court proceedings need to be started the formal procedure must be started Claims where there are personal injuries and the claimant does not expect to be awarded more than £50,000 must be started in the County Court – all other claims must be started in either the CC or HC Most are started in the CC – if they do then the first step is to complete a claim form – can be downloaded or collected from court office

Form is simple to complete Names and addresses for C and D Brief details of the claim Value of claim The purpose of this is to establish the fee payable and to help establish the choice of court and track If the claim is expected to be less that £5,000 in total with some element being personal injuries and there being some losses that have a fixed value (clothes, earnings) the C would put ‘My claim includes a claim for personal injuries and the amount I expect to recover as damages for pain, suffering and loss of amenity is not more than £1,000’

The particulars of claim on side two of the form will give details of the claim being made This may be sent separately within 14 days, but most simple claims have it included The particulars of claim give a simple statement of the facts on which the claimant bases the claim. This might include the time, date and place of the accident, and an outline of why the claimant considers the defendant has been negligent

The fee payable depends on the size of the claim – there is also the possibility of having the fee lessened or pay no fee at all in certain cases for claimants with low income and few assets This claim form is then served on the defendant, usually by post The D is also sent forms for use in dealing with the claim made – at this stage the claimant chooses which CC he wishes to start the claim in, although it may be transferred later in the process

The defendant receives the claim form Assuming the defendant’s details and address are correct, the claim form and defendant response pack will not be returned to the court by the Post Office and will be deemed to have been received by the defendant The response pack includes an admission form (so that he can admit the claim), a defence form (if he does not admit the claim) and an acknowledgement of service form, which confirms receipt of the claim

The defendant can do nothing and not reply to the claim at all, admit all or part of the claim, or dispute all or part of the claim This must be done within 14 days of receiving the claim, or within any extension given by the court If no defence is given the claimant can file for a default judgement and effectively win the case – the court will then only be concerned with awarding the appropriate amount of damages and costs This can be done by either allocating the case to the small claims track or to a disposal hearing in those cases where the claim is more complicated

In many cases the defendant may attempt to settle the claim by making an offer of payment The defendant may dispute the claim in which case the D may well just complete an acknowledgment of service , as this will give additional time to complete the defence: 14-28 days In these circumstances the claimant well discover that the defendant has instructed a solicitor. The D will then complete his defence and send it to the court

The claimant receives the defence When this happens the court sends out an allocation questionnaire to all parties in the case The purpose is to establish the location, track and timing of a trial – there is usually (apart from money claims of less than £1,500) an allocation fee payable of £100 This is another incentive to negotiate a settlement of the case as the expense of taking the case forward mounts up There will also be a trial fee which for a multi-track case is £500 The court will keep records of when the allocation questionnaires are due to be returned and if in fact the have been returned

This is part of case monitoring – case monitoring is where judges receive support from court staff in carrying out their case management role The court uses a computerised diary monitoring system to record court orders and requests, the deadline for the return of documents such as the questionnaire and whether the deadline has been met Once the Q’s have been completed, a procedural judge (normally a District Judge) will allocate the case to the appropriate track If a party to a case does not comply with a court order or time limit, that party may be struck out of the action

The effect of this is that the party would be unable to take further part in the case and would lose any right to claim or defend the court action This is part of judicial case management, which aims to keep the process moving along at a reasonable speed and help reduce the average time taken to deal with a claim One reason for case management being introduced is to avoid the former problem of even quite trivial cases dragging on for years – the judge now has the power to summon the parties to court to find out what is going on in the event of inactivity

The three tracks The court rules and practice direction explain the limits of the tracks There are three tracks: small claims, fast track and multi-track Which court and judge will hear the case depends on the scope and size of the case

The small-claims track is the normal track for claims of a monetary value of less than £5,000 It is also the track for cases in which the financial value of any claim for damages for personal injuries is less than £1,000 Personal injuries include claims for pain, suffering and loss of amenity There will be no complex issues involved – usually heard by a District Judge (example from book)

The fast track is the normal track for a claim that does not fall within the small-claims track and has a claim value of less than £15,000 In addition, the trial must not be expected to last more than one day and there is limited oral expert evidenced There may be some complex issues involved. Usually heard by a District Judge (example from book)

Any claim that is not within the scope of small-claims track or fast track is a multi-track case This would be more complex and also (usually) involving a larger sum of money Almost always heard by a Circuit Judge (example from book) After the case has been allocated the court sets a date for the trial. This will be at least 21 days later and the actual date will depend on what other directions need to be made These other directions include providing copies of documents to the other party or parties to the case and copies of experts’ statements – the stage is now set for the trial