#10456 - Issuing Claims Defence - Personal Injury and Clinical Negligence

ISSUING CLAIMS

DEFENCE

PARTICULARS OF CLAIM

• See precedents in file.

• Who is the defendant

• Duty of care if required

• Allegation of negligence/breach

• Particulars of negligence/breach

• Allegation of injury, loss, damage

• Particulars of injury, loss, damage

• Claimant’s age and date of birth

• Accompanying documents

  • Schedule of damage

  • Medical report

  • Required by CPR Part 16

• Mentioning witnesses – optional

• Summary

• Date

• Signature

• Statement of truth

• Address for service

DEFENCE

See precedents in file for defence.

What are the defendant’s options?

• Acknowledge within a set period

• Defend within a set period and

  • Give reasons for denials

  • Assert a positive case wherever possible

• Allege contributory negligence where appropriate – it was wholly or partly the claimant’s fault

• Counterclaim under CPR 20.4

• Consider additional claims

  • Claim against additional party

  • Attempt resolution pre-action

  • Then issue additional claim form (CPR 20)

    • Particulars of claim

      • Damages/contribution/indemnity

    • Additional party to acknowledge/defend in the usual way

• No need for the court’s permission if filed with defence CPR 20.4(2)(a)

Pre-issue checklist

• Unless limitation period is about to expire, proceedings should not be commenced until the claimant’s solicitor is satisfied that:

  • The period allowed by the relevant pre-action protocol has expired

  • A full investigation has been undertaken and all evidence has been obtained

  • A re-evaluation of the risk assessment has been carried out

  • Requirements of the relevant pre-action protocol have been complied with

  • The claimant’s solicitor is ready to process the claim once proceedings have started

  • Where the claimant has before-the-event insurance or after-the-event insurance, his/her insurers have given permission for proceedings to be commenced

  • The claimant understands the situation and has given instructions to proceed

Matters to consider upon issue

• Medical report and schedule of past and future loss and expense

  • Should be attached to the particulars of claim

• Notice of funding by conditional fee agreement/after-the-event insurance policy

  • Should be filed with court and served on the defendant

• Notice of legal aid certificate

  • In clinical negligence cases funded by LSC, the claimant must serve notice of the issue of the certificate

• Notice in road traffic cases – s. 151/152 RTA 1998

  • If claim under s. 151, the claimant must give the insurer notice of the claim either before or within 7 days of commencement of the claim

Which court?

• All tort proceedings can be started in the county court

• Proceedings including a claim for damages for personal injury can be started in the High Court only where

  • The total claim is worth at least 50,000 - this minimum value does NOT apply to proceedings in respect of clinical negligence OR

  • Due to complexity of the facts, legal issues, remedies or procedures involved, or the importance of the outcome to the general public, the claimant believes it ought to be dealt with by a High Court judge

• The value of the claim for commencement purposes does NOT include interest and costs, any possible counterclaim or findings of contributory negligence

• Procedure for issuing a claim for damages in the County Court has been altered

• Choice of either High Court or County Court if value is 50,000 or more

• Where such a claim is valued at less than 50,000, it will be classed as a “designated money claim” and must be issued in the County Court Money Claims Centre in the Northampton CC

• The claim is then managed in the CCMCC up until the Defence is served or the defendant admits liability

• It is then transferred to the claimant’s preferred court as indicated on the Claim Form.

• The Claim Form N1 has been altered to include a section under which the claimant can indicate his/her preferred court for hearings.

Time-frames

• A case must be defended in the usual way, even if you believe it is timebarred

• Claim form

  • Must be served within 4 months after date it was issued

• Particulars of claim

  • Should be served with the claim form OR within 14 days after service of the claim form

  • In...