MEDICAL NEGLIGENCE AND PERSONAL INJURY NOTES
CHAPTER 1: FUNDING AND PRE-ACTION PROTOCOL
FIRST INTERVIEW
1. Identify facts
To establish liability, solicitor should consider:
- Site visit
- Obtaining photographs of accident location
- Obtaining witness statements
- Obtaining a liability expert’s report
- Evidence of a criminal conviction
- Retention of real evidence for inspection
To establish quantum, solicitor should consider:
- Collecting receipts/invoices from client
- Collecting pay slips
- Advising client to keep a diary of how their injuries are affecting them on a daily basis
- Obtaining photographs of client’s injury
- Obtaining witness statements
- Obtaining medical evidence
2. Identify client goals
3. Preliminary advice on limitation, liability and damages
- Ask when accident happened to determine when limitation period expires
- Do they have a claim?
- How likely is it that the client will win?
- How much compensation is the client likely to get?
- How much will it cost the client?
LIMITATION
The primary limitation period for a claim that includes PI is 3 years from:
(a) The date on which the cause of action accrued (usually accident date); or
(b) The date of knowledge of the injured party (s.11(4) LA 1980)
Whichever is later
“Knowledge” will arise when C first has knowledge of the following:
- The injury was significant (s.14(1)(a))
- The injury was attributable in whole or in part to the act or omission which is
Date of alleged to constitute negligence (s.14(1)(b))
knowledge
(s.14 LA - The identity of the defendant (s.14(1)(c))
1980)
- If it is alleged that the act or omission was that of a person other than the
defendant, the identity of that person and the additional facts supporting
the bringing of an action against the defendant (s.14(1)(d))
,MEDICAL NEGLIGENCE AND PERSONAL INJURY NOTES
“Constructive knowledge” s.14 LA 1980 includes knowledge that he might reasonably have
been expected to acquire by making further enquiries or seeking the advice of a medical or other
expert
Persons with a disability
- When an individual has a disability (s.38(2) LA 1980):
o He/she lacks capacity; or
o He/she is an infant (i.e. a child under the age of 18 years)
S.28 LA 1980: if the C is under a disability on the date when any cause of action accrued, the
limitation period expires 3 years from the date when the disability ceases
NOTE: s.28(6) LA 1980 states that the relevant time for those under a “disability” is 6 years, but this is
substituted for 3 years by virtue of s.28(6)
EXTENDING THE LIMITATION PERIOD
Where a claim is brought outside the primary limitation period, the court has discretion = s.33(1) to
‘allow an action to proceed’.
Court will have regard to factors in s.33(3) when deciding whether to extend the limitation period:
(a) Length of, and the reasons for, the delay;
(b) Extent to which, having regard to the delay, the evidence is or is likely to be less cogent than if
the action had been brought within the time allowed; s.11, s.11A or s.12
(c) Conduct of the defendant, including the extent to which he responded to requests reasonably;
(d) Duration of any disability;
(e) Extent to which the claimant acted promptly and reasonably once he/she knew that the injury
was attributable to a negligent act or omission;
(f) Steps, if any, taken to obtain medical, legal or other expert advice and the nature of any such
advice
ISSUING PROCEEDINGS
WHERE ARE PROCEEDINGS ISSUED?
• If the claim includes damages for PI and the total claim is worth £50,000 or more = High Court
(CPR 7APD 2.2-2.3)
• A claim should be started in High Court if by reason of (CPR 7APD 2.4)
(a) Financial value of the claim
(b) Complexity of facts, legal issues, remedies or procedures involved
(c) The importance of the outcome of the claim to the public in general
The claimant believes that the claim ought to be dealt with by a HC judge.
• When calculating value of claim = disregard interest and costs (CPR 16.3(6)(a)) as well as any
possible counterclaim or finding of contributory negligence (CPR 16.3(6)(b) and (c))
• ALL designated money claims which are to be commenced in the County Court must be issued in
the COUNTY COURT MONEY CLAIMS CENTRE
, MEDICAL NEGLIGENCE AND PERSONAL INJURY NOTES
FUNDING
Legal Aid is largely NOT available for death or PI claims = Part 2, Sch 1 LASPO 2012
Conditional “No win no fee” arrangements = solicitor fees are conditional on the success of the case
Fee
Agreements If C loses = no fee is payable to the solicitor
(CFAs)
If C wins = success fee will be paid to solicitor in addition to solicitor’s costs and disbursements
Key pointers:
- Client must provide informed consent to level of success fee
- Success fee is a % of basic costs
- Disbursements remain payable (usual for these to be covered by taking out ATE insurance policy)
- S.58A(6) as amended by S.44(6) LASPO: winning party is NOT entitled to recover success fee from
losing party
- S.44 LASPO: for CFAs entered into from 1st April 2013 = success fee may not exceed more than 25% of
damages
Damages- “Contingency” fee agreement = if C succeeds, a % of damages awarded will be payable to the solicitor
based
agreements Key pointers:
(DBAs) - Costs are taken from the damages in addition to any disbursements limited to 25% of combined
sums awarded for general damages (PSLA) and past pecuniary losses
- Costs can still be recovered from the other side (up to max. amount provided for in DBA)
- If costs are assessed at an amount which is below DBA payment, any shortfall will be taken from
claimant’s damages
If C loses = only liable for disbursements (client has no liability for their solicitor’s legal costs
Calculation = 25% of damages recovered + disbursements
Legal If C has LEI = legal costs of the claim may be funded by the insurer
Expenses
Insurance Claimants can get following types of insurance policy to cover the cost of litigation:
- Before the event (BTE) insurance: taken out as a general policy against the risk of future claims before
a specific claim is begun; or
- After the event (ATE) insurance: taken out after a specific claim has been made solely to cover the cost
of that litigation, particularly if the insured party loses higher premium and only available if
insurance company judges that the risk of losing is low
NOTE: even if client wins = recovery of cost of any BTE premium from the other party is unlikely
If client wins and is awarded costs but took out ATE policy after 1 April 2013 = premium will not be recoverable
from the party
Trade If C is TU member = may be able to obtain funding for their claim from TU
Union
Paying If none of the options are viable = C may choose to fund a case privately by a standard retainer with the
privately solicitor
CHAPTER 1: FUNDING AND PRE-ACTION PROTOCOL
FIRST INTERVIEW
1. Identify facts
To establish liability, solicitor should consider:
- Site visit
- Obtaining photographs of accident location
- Obtaining witness statements
- Obtaining a liability expert’s report
- Evidence of a criminal conviction
- Retention of real evidence for inspection
To establish quantum, solicitor should consider:
- Collecting receipts/invoices from client
- Collecting pay slips
- Advising client to keep a diary of how their injuries are affecting them on a daily basis
- Obtaining photographs of client’s injury
- Obtaining witness statements
- Obtaining medical evidence
2. Identify client goals
3. Preliminary advice on limitation, liability and damages
- Ask when accident happened to determine when limitation period expires
- Do they have a claim?
- How likely is it that the client will win?
- How much compensation is the client likely to get?
- How much will it cost the client?
LIMITATION
The primary limitation period for a claim that includes PI is 3 years from:
(a) The date on which the cause of action accrued (usually accident date); or
(b) The date of knowledge of the injured party (s.11(4) LA 1980)
Whichever is later
“Knowledge” will arise when C first has knowledge of the following:
- The injury was significant (s.14(1)(a))
- The injury was attributable in whole or in part to the act or omission which is
Date of alleged to constitute negligence (s.14(1)(b))
knowledge
(s.14 LA - The identity of the defendant (s.14(1)(c))
1980)
- If it is alleged that the act or omission was that of a person other than the
defendant, the identity of that person and the additional facts supporting
the bringing of an action against the defendant (s.14(1)(d))
,MEDICAL NEGLIGENCE AND PERSONAL INJURY NOTES
“Constructive knowledge” s.14 LA 1980 includes knowledge that he might reasonably have
been expected to acquire by making further enquiries or seeking the advice of a medical or other
expert
Persons with a disability
- When an individual has a disability (s.38(2) LA 1980):
o He/she lacks capacity; or
o He/she is an infant (i.e. a child under the age of 18 years)
S.28 LA 1980: if the C is under a disability on the date when any cause of action accrued, the
limitation period expires 3 years from the date when the disability ceases
NOTE: s.28(6) LA 1980 states that the relevant time for those under a “disability” is 6 years, but this is
substituted for 3 years by virtue of s.28(6)
EXTENDING THE LIMITATION PERIOD
Where a claim is brought outside the primary limitation period, the court has discretion = s.33(1) to
‘allow an action to proceed’.
Court will have regard to factors in s.33(3) when deciding whether to extend the limitation period:
(a) Length of, and the reasons for, the delay;
(b) Extent to which, having regard to the delay, the evidence is or is likely to be less cogent than if
the action had been brought within the time allowed; s.11, s.11A or s.12
(c) Conduct of the defendant, including the extent to which he responded to requests reasonably;
(d) Duration of any disability;
(e) Extent to which the claimant acted promptly and reasonably once he/she knew that the injury
was attributable to a negligent act or omission;
(f) Steps, if any, taken to obtain medical, legal or other expert advice and the nature of any such
advice
ISSUING PROCEEDINGS
WHERE ARE PROCEEDINGS ISSUED?
• If the claim includes damages for PI and the total claim is worth £50,000 or more = High Court
(CPR 7APD 2.2-2.3)
• A claim should be started in High Court if by reason of (CPR 7APD 2.4)
(a) Financial value of the claim
(b) Complexity of facts, legal issues, remedies or procedures involved
(c) The importance of the outcome of the claim to the public in general
The claimant believes that the claim ought to be dealt with by a HC judge.
• When calculating value of claim = disregard interest and costs (CPR 16.3(6)(a)) as well as any
possible counterclaim or finding of contributory negligence (CPR 16.3(6)(b) and (c))
• ALL designated money claims which are to be commenced in the County Court must be issued in
the COUNTY COURT MONEY CLAIMS CENTRE
, MEDICAL NEGLIGENCE AND PERSONAL INJURY NOTES
FUNDING
Legal Aid is largely NOT available for death or PI claims = Part 2, Sch 1 LASPO 2012
Conditional “No win no fee” arrangements = solicitor fees are conditional on the success of the case
Fee
Agreements If C loses = no fee is payable to the solicitor
(CFAs)
If C wins = success fee will be paid to solicitor in addition to solicitor’s costs and disbursements
Key pointers:
- Client must provide informed consent to level of success fee
- Success fee is a % of basic costs
- Disbursements remain payable (usual for these to be covered by taking out ATE insurance policy)
- S.58A(6) as amended by S.44(6) LASPO: winning party is NOT entitled to recover success fee from
losing party
- S.44 LASPO: for CFAs entered into from 1st April 2013 = success fee may not exceed more than 25% of
damages
Damages- “Contingency” fee agreement = if C succeeds, a % of damages awarded will be payable to the solicitor
based
agreements Key pointers:
(DBAs) - Costs are taken from the damages in addition to any disbursements limited to 25% of combined
sums awarded for general damages (PSLA) and past pecuniary losses
- Costs can still be recovered from the other side (up to max. amount provided for in DBA)
- If costs are assessed at an amount which is below DBA payment, any shortfall will be taken from
claimant’s damages
If C loses = only liable for disbursements (client has no liability for their solicitor’s legal costs
Calculation = 25% of damages recovered + disbursements
Legal If C has LEI = legal costs of the claim may be funded by the insurer
Expenses
Insurance Claimants can get following types of insurance policy to cover the cost of litigation:
- Before the event (BTE) insurance: taken out as a general policy against the risk of future claims before
a specific claim is begun; or
- After the event (ATE) insurance: taken out after a specific claim has been made solely to cover the cost
of that litigation, particularly if the insured party loses higher premium and only available if
insurance company judges that the risk of losing is low
NOTE: even if client wins = recovery of cost of any BTE premium from the other party is unlikely
If client wins and is awarded costs but took out ATE policy after 1 April 2013 = premium will not be recoverable
from the party
Trade If C is TU member = may be able to obtain funding for their claim from TU
Union
Paying If none of the options are viable = C may choose to fund a case privately by a standard retainer with the
privately solicitor
