1. The Stages of Litigation
Dominic Ruck Keene and Paul Reynolds
1COR Clinical Negligence Team
© 1 Crown Office Row

2. -Aim of presentation: to focus on tactics from perspective of Claimant and Defendant at each stage of the litigation Medical scenario as outlined in hand-out

4. 1. Initial analysis 2. Inquest 3. Letter of Claim and Response 4
1. Initial analysis Inquest Letter of Claim and Response Pleadings Part 36 Offer Case and Costs Management Hearing Offers to Settle and RTM Trial

5. 1. Initial analysis – Claimant
Is there a claim?
Risk assessments and funding
Obtaining medical records
Witness statements
Expert reports
Against whom?
Multiple defendants
Costs consequences
For how much?
Heads of loss
Evidence gathering

6. 1. Initial analysis – Defendant
Liability
Clinician comments
Expert evidence
Duty of candour
Other Defendants
Other Trusts
Defence organisations

7. 2. The Inquest Coronial investigation
Who died, when, where and how (“by what means”)
Article 2 inquests: “by what means and in what circumstances”
Inquisitorial rather than adversarial
Wide discretion to the Coroner
Scope
Evidential rules

8. 3. The Letter of Claim and Response
Pre-Action Protocol for the Resolution of Clinical Disputes
Seeks to encourage openness
Resolve disputes without litigation
Timed sequence of steps: ensures predictability in time needed for steps pre-proceedings
Standardisation of relevant information, including records and documents to be disclosed
Guidance for Letter of Claim and Letter of Response and templates

9. 3. The Letter of Claim and Response – Claimant’s perspective
Who to sue?
How much to show: clear summary of the facts; main allegations of negligence; description of patient’s injuries; present condition and prognosis; financial loss and heads of damage
Chronology? Draft Particulars of Claim instead of letter?
Attach records? (e.g. GP records to hospital)
Offer to settle? Medical report on injuries, condition and prognosis?
Limitation / Protective proceedings

10. 3. The Letter of Claim and Response – Defendant’s perspective
How to reply:
Timescales – four months
Expert evidence
Getting facts right (or not mentioning them)
How strong to be in denials: “a reasoned answer”; “specific comments on the allegations of negligence”; version of events if chronology or facts disputed
Provide copies of internal protocols?
Part 20 actions – whether to bring in Dr Burns (GP); cost implications

11. 4. Pleadings – Claimant Who to sue Multiple defendants
Conference with client and expert
Pleading styles
Duty to plead certain matters, eg fraud
Provisional damages
Later pleadings – replies and schedules

12. 4. Pleadings – Defendant Issue fees
Decision on Part 20 Defendants/internal notification
Is a conference required?
Pleading requirements, e.g. positive case on causation
Calling Claimants out on vagueness!
Later pleadings – Counter-schedules

13. 5. Part 36 Offers
Procedural mechanism to encourage reasonable offers and settlement
Intention: to keep cases out of Court
How it works: costs consequences of failing to “beat” an offer

14. 5. Early Part 36 Offers – Claimant’s perspective
Information available at this early stage of the litigation
Benefits of an early settlement
Dangers of an early settlement
Litigation risk

15. 5. Early Part 36 Offers – Defendant’s perspective
Information available at this early stage of the litigation
 Factors to consider (among others)
Case analysis and chances of a successful defence
Costs of mounting a successful defence
Publicity
 How to judge the offer
The dangers of a “derisory” offer
Genuine costs protection
Whether to include an admission of liability

16. 6. Case and Costs Management Conference
Review steps, decide and give directions about future steps, record any agreement between parties
Standard items to cover: value of claim, amendments to claim or statement of case, disclosure of documents, expert evidence, factual evidence, expert discussions, split trial or trial of preliminary issues, time estimate, listing

17. 6. CCMC – Claimant’s perspective
Good understanding of Claimant’s current situation and prognosis
Number and fields of experts – don’t ask, don’t get
Simultaneous rather than sequential exchange of expert evidence
Increase value of claim
Adequate time estimate for trial
Additional applications or relief from sanctions
Further CCMC required? Maximising pressure on Defendant

18. 6. CCMC – Defendant’s perspective
Is claim unclear or inadequately pleaded?
Limiting expert evidence (e.g. care, related or similar disciplines)
Limiting witnesses of fact
Sequential exchange of expert evidence
Split trial or preliminary issue?
Additional applications or relief from sanctions

19. 7. Further Part 36 Offers and RTMs – Claimant
Information available at this stage of the litigation
 Benefits of a settlement
 Dangers of a settlement
 Litigation risk
Will I win?
Can I afford to lose?

20. 7. Further Part 36 Offers and RTMs – Defendant
Information available at this stage of the litigation
 Factors to consider
Case analysis and chances of a successful defence
Costs of mounting a successful defence
Publicity
 How to judge the offer
Whether to make an offer
Looking to settle, or encourage discussion?
Genuine costs protection
Whether to include an admission of liability

21. 7. The Round Table Meeting
 Preparation
The meeting

22. 8. Trial

23. Thank you