See You In Court….. Or Will You?

One of the most common questions that I am asked by my clients in medical negligence claims is whether their case will go to Court in the form of a trial. This is an important question to many clients. Some people will understandably be nervous about the prospect of going into a witness box and being questioned by a barrister and /or Judge. On the other hand, others will want to go to have their “day in Court”. But in reality, what are the chances of your medical negligence claim actually going to Court?

Medical negligence claims in Court

Quite simply, whilst not impossible the chances of going to Court are very rare, whether you want to go to trial or not. In my own experience of having worked within medical negligence for 10 years I have only ever seen three of the cases I have worked on go to trial. There are a number of reasons for this, specifically in medical negligence claims.

Duration of a medical negligence claim

Firstly, getting to the point of going to Court can take years. Investigating claims can initially take 6-12 months or more. If you then need to take the step of issuing Court proceedings, the case could go on for a further 1-2 years, or again more. Once Court proceedings are commenced, the parties will follow the Court’s Directions as to the steps that need to be completed in preparation of any final trial. This will include steps such as disclosing any relevant documents, exchanging witness statements and expert evidence.

Whilst these are procedural steps that must be taken in preparing for a trial, it also allows the parties to narrow the issues between them in the hope that settlement can be reached. This is something that is actively encouraged by the Court because it not only means the Courts busy timetable can be freed up, but also that unnecessary legal costs can be avoided. Claims can be settled at any point right up until trial. In some cases claims can even settle during the course of the trial, although this is very rare.

Costs of a medical negligence claim and going to Court

The longer a claim goes on for, the greater the legal costs will be for both sides. From the outset, when bringing a medical negligence claim (or most legal claims for that matter) going to Court is viewed as a “last resort”. Parties are actively encouraged and expected to try and resolve matters before any final trial. Actually ending up in Court can be extremely expensive.

Despite impressions given in the media solicitors, particularly those involved in litigation, are in fact conscious and expected to avoid incurring unnecessary legal costs. One of the biggest costs involved in any civil litigation claim, will be if the case goes to Court. This should therefore be avoided if possible. If it can’t be, then who pays for the costs of going to Court? It is this risk of costs and losing which is one of the biggest deterrents for any party to go to Court.

In claims that end up in Court where liability is disputed, it is essentially “all or nothing”. One party will “win” and the other will “lose”. Very rarely is there a middle ground, and in the end the outcome of a case will be decided by one person. The Judge. You do not have juries in medical negligence claims. Ultimately, whilst you may feel that you have strong evidence in your claim, you are completely in the hands of the Judge allocated to your case and it is impossible to predict how they will view your claim. Even in cases where liability is admitted but the amount of damages is in dispute (quantum trials), it is still extremely risky for both parties to leave the valuation of the claim up to a Judge. This is because no one, not even your solicitor or barrister will know who’s evidence a Judge will find more persuasive. You can only make an educated “guess” as to what you think a Judge will decide.

Added to this risk is that each party will not know how their clients or witnesses will perform in the witness box. Some can come across as confident and very genuine. However, others can “collapse” under the pressure or even come across as dishonest. Witnesses cannot be coached before going to Court and therefore it is impossible to recreate a Court room experience to have any idea as to how a client or witness will fare. Cases can be won and lost based on how a Judge may view the credibility and the trustworthiness of a witness.

The risks of losing a medical negligence claim at Court

If a claim does go to Court and you lose, the consequences particularly in terms of costs could be massive. The general rule for medical negligence cases is that the party that loses at trial is responsible for all of the other side’s legal costs. It should be noted that this is a very broad statement and there are certainly exceptions to this, but this would be the normal starting point.

Claimants do have some protection against having to pay a Defendant’s legal costs in the form of One Way Qualified Cost Shifting (QOCS), but I will not be discussing this for the purposes of this blog as it is a complex area in itself. Nevertheless, the risk of having to potentially pay for your own costs as well as the other side’s legal costs which could run in to hundreds of thousands of pounds, whether you are the Claimant or Defendant is a real risk. Even if you are awarded damages but fail to “beat” a previous offer made by the other side, you may still be ordered to pay their costs which could effectively wipe out any damages you do receive.

Risks for medical negligence claimants going to Court

The risks of going to Court are therefore very high for both parties. This is why more often than not, cases will be resolved through negotiations and compromise between both parties before ever getting to Court.

It should be remembered that each case will be different and decided on its own merits and my discussion above is a general overview. There may be some cases where going to Court really is the only option as both parties have exhausted all possible ways of trying to resolve a claim. But Clients should listen to the advice of their medical negligence solicitors very carefully when it comes to the risks of going to Court. This is particularly true to those who may want to go to Court. Unfortunately, it is not a simple issue and there are real and genuine risks of having your “day in Court.”

Inquests

There is however, one main exception to the above.

Inquests, are a public investigations that may be ordered by a Coroner following the death of someone which may be due to unknown, violent or unnatural causes. Inquests are not the same as Civil claims/courts (above) where someone is looking to sue another, where the main outcome will usually be an award of damages if successful.

Inquests do not seek to compensate a person, but instead looks to answer the four questions of who, where, when and how (normally the most important question of any Inquest) a person died.

Inquests will take place before a Coroner in a Coroner’s Court in the form of a formal hearing and this can also be before a jury.

Inquests are very different to civil trials, and are in fact relatively common in fatal claims (where someone has died) whilst under the protection or care of the State.

If you are in need of specialist legal advice call our highly experienced medical negligence experts on 0330 822 3451 who will be able to assist. Alternatively, you can request a call back online.