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

-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

1. Initial analysis 2. Inquest 3. Letter of Claim and Response 4 1. Initial analysis 2. Inquest 3. Letter of Claim and Response 4. Pleadings 5. Part 36 Offer 6. Case and Costs Management Hearing 7. Offers to Settle and RTM 8. Trial

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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?

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

7. The Round Table Meeting  Preparation The meeting

8. Trial

Thank you Dominic.Ruck-Keene@1cor.com Paul.Reynolds@1cor.com