Starting a claim for compensation can be a daunting experience, especially if you have no prior experience of the legal system. This is a brief overview of some of the key stages of a typical compensation claim for personal injury whether the claim arises as a result of an accident or medical treatment.
The ‘pre-action’ stage comes first, before a claim is started at Court.
During the pre-action stage, legal representatives for the injured person and the party accused of fault (the defendant) have the chance to investigate ‘liability’, i.e. whether the defendant is negligent.
In the early stages of the claim, the claimant’s solicitor will speak to their client, call in the medical records and take steps to gather evidence proving liability. In some cases (for example, in clinical negligence cases), this may involve obtaining a report from an independent expert.
Once investigations into liability are complete, the claimant’s solicitors will send a Letter of Claim to the defendant setting out the allegations of negligence in the claim.
Following receipt of the Letter of Claim, the defendant will then have a chance to investigate before responding. The defendant has a fixed timeframe for sending the claimant a Letter of Response, setting out their position on liability and whether the claim is admitted or denied (which is three or four months depending upon the type of claim).
Alternative dispute resolution
The rules governing compensation claims for personal injury make it clear that litigation should be a last resort. This means that even at the pre-action stage, the parties should consider whether negotiation or some other means of ‘alternative dispute resolution’ (for example, mediation) might enable them to resolve a claim without the need for commencing the claim at Court.
Following receipt of the Letter of Response, it may be appropriate for the claimant’s solicitor to advise the client on making a settlement offer to see whether the defendant will engage in pre-action negotiations with the aim of settling the claim.
If the parties cannot resolve the claim at the pre-action stage or the deadline for starting a case at Court is approaching, the claimant’s solicitor may need to take steps to commence a claim at Court. This is known as ‘issuing proceedings’.
In order to issue proceedings, the claimant must send a ‘claim form’ containing certain information to Court and pay a fee. The Court will stamp the claim form when issuing proceedings and the litigation then becomes ‘live’.
Following issue of proceedings
Once a claim has been issued at Court, the parties will have to comply with a set of court deadlines. The steps that follow include the parties giving disclosure of relevant documents to one another, as well as exchanging witness statements and expert evidence.
If the claim does not resolve during litigation, it will proceed towards a trial. However, the focus should still be on trying to narrow the issues in dispute and resolve the claim through ‘alternative dispute resolution’ where possible. The parties may exchange settlement offers in the hope of resolving the claim.
They could even choose to arrange a mediation or round-table meeting to discuss settlement of the claim.
It should be noted that whilst not impossible, it is rare for claims to go all the way to trial and far more likely that they will conclude out of court at some stage.
Whilst every claim in practice will take its own course; the key stages described above will apply whether the claim has arisen as a result of an accident or alleged clinical negligence. The parties’ main focus during the lifespan of a claim will be to narrow the issues in dispute and work towards achieving a resolution of the claim wherever possible.