BASIC CONCEPTS from the date of the accident so, excluding the date of the accident, it
will expire on 15 Sep 2020. Ann will have until that date to issue a claim.
TYPES OF CLAIM: Date of knowledge:
A Claimant (C) may also bring a claim after the limitation period. – Eg. it
Road Traffic Accident (RTA) Public Liability (PL) may be years after an operation when the patient experiences
unexpected symptoms. This is also common for industrial disease cases.
An injury arising out of a road An injury arising out of use of public
traffic accident. – eg. two cars products/premises. – eg. walking on the s.14 LA 1980 Injured party will have knowledge when they realise that:
collide. street and falling over the uneven paving. a) injury was significant
b) it was attributable (wholly/partially) to the act/omission
constituting negligence/nuisance/breach of duty
c) C knows the identity of D
Employers Liability (EL) Medical Negligence (MN) AND
d) if act/omission was that of a person other than D, the identity
An injury arising during the A patient suffers an injury due to of that person and the additional facts support the claim.
course of employment. – eg. negligent treatment carried out by a
injury due to defective medical professional (doctor/nurse/
machinery. dentist) – eg. operating on wrong patient. Expectation to acquire ‘knowledge’:
If C wants the limitation period to start from their date of knowledge, C
must prove the date when they acquired the knowledge.
FIRST INTERVIEW: s.14 LA 1980 Knowledge includes constructive knowledge.
Firms dealing with personal injury (PI) and medical negligence (MN) Constructive knowledge = knowledge that they reasonably would have
often offer a free first interview. – encouraging to clients been expected to acquire by making enquiries/seeking expert advice.
Identify facts: Persons under a disability:
* Encourage client to tell their story. Exception to the limitation period: if one of the parties has a disability.
* Assess whether client has a cause of action. s.38(2) LA 1980 A party is legally disabled if:
* Establish what evidence is missing for proving liability (duty and * they lack capacity to conduct proceedings – Mental Capacity
breach), causation and quantum (the value of the claim). Act 2005
To establish liability: OR
* Carry out a site visit * they are an infant (under 18)
* Obtain photos of the accident location s.28(6) LA 1980 If C is under a disability on the date when cause of action
* Obtain witness statements accrued, limitation period expires 3 years from the date when the
* Obtain a liability expert’s report disability ceases.
* Obtain evidence of a criminal conviction
* Retain real evidence for inspection – machinery, torn clothing Example:
To establish quantum: If an accident occurred on 15 Mar 2015, but injured party is an infant
* Collect receipts/invoices from client – medication receipts (DoB: 16 Feb 2000), limitation period does not expire until 3 years after
* Collect occupational records/payslips – to prove lost earnings the injured party’s 18th birthday (16 Feb 2021). If a PI accident occurred
* Ask client to keep diary as to how their injuries affect them in on 15 Apr 2015 and the injured party lacks capacity on that date, the
their daily life – eg. unable to walk and go to work. limitation period does not expire until 3 years after the date when the
* Obtain photos of client’s injury – bruising/swelling/scarring may disability ceased (20 Jul 2018).
improve over time Extending the limitation period:
* Obtain witness statements If C fails to commence a claim within the primary limitation period, C
* Obtain medical evidence becomes barred from commencing a claim.
Ask client about their goals. A solicitor can only claim for compensation, s.33 LA 1980 C can apply to extend the limitation period. The court has
not an apology. Note that your client may only want an apology. discretion to extend the limitation period if it would be equitable to do
Ascertain if the client has a claim worth pursuing. If so, advise about the so, having regard to the balance of prejudice to each party.
funding options available to client. s.33(3) Court should consider all the circumstances of the case such as:
Preliminary advice: a) Length/reasons for the delay
* Limitation – Ask client the date of the accident to calculate the b) Effect of the delay on the cogency of evidence
expiry date of the limitation period. If no obvious accident date c) D’s conduct
– find out when client had ‘knowledge’ of a claim. d) Duration of C’s disability arising after the cause of action
* Liability – If the Defendant (D) is likely to be liable and how likely e) Whether C has acted promptly and reasonably once they knew
it is that will client win the case. that the injury was attributable to a negligent act/omission
* Damages – let client know: advice is subject to further evidence. AND
Quantum calculation is not precise at this stage. f) The steps C took to obtain medical/legal/other expert advice and
the nature of advice. – eg. if received bad advice
Give client a time and costs estimate of the claim. The court should apply a subjective test when considering why C
CPR 44.2 General costs principle applies. delayed.
LIMITATION PERIOD: *POPULAR EXAM Q* ADMISSIONS OF FACT/LIABILITY:
Primary limitation period – PI claims: In order to save time and costs, CPR encourages parties to make
3 years from: admissions of fact/liability.
1. date on which the cause of action accrued – accident date CPR 14.1(1)-(2) Admissions may be made pre-action or after bringing a
OR claim by written notice to the other party. C may then enter judgment
2. s.11(4) Limitation Act 1980 date of knowledge of injured party (except if children/protected parties are involved).
whichever is later. Effect of an admission:
Don’t include: the date when the action accrued/date of knowledge. * Only quantum will have to be resolved OR
* if insurer withdraws the admission of liability – C has to revert
If there is more than one injured party, they must make a separate to proving their claim against D.
claim and the limitation period for all of those claims will be calculated Withdrawal of an admission:
separately.
Example: A party may withdraw a pre-action admission:
Ann was involved in an accident at 9 pm on 15 Sep 2017. When does the 1. Before commencement, by giving notice in writing, if the other
limitation period expire? – The limitation period for PI claims is 3 years party agrees - CPR 14.1A(3)(a)
2. After commencement, if the other party agrees or with court
permission - CPR 14.1A(3)(b)
Medical Negligence – All chapters – Revision Notes | Page 1 of 19
,14 PD 7.2 When deciding on giving permission, court will consider: C solicitor: Ensure that you understand client’s medical problems/
* grounds for withdrawing the admission financial losses.
* if new evidence has come to light
* the parties’ conduct D solicitor: Ensure that you understand client’s medical problems/
* prejudice to any person if the admission is withdrawn/refused financial losses. Ensure that you have all evidence to value C’s case but
* at which stage in the proceedings the application is made avoid paying for unnecessary reports.
* prospects of success if the admission is withdrawn
* interests of the administration of justice Selecting an expert:
1. someone whose integrity is beyond doubt
CHILDREN AND PROTECTED PARTIES: 2. whose experience/reputation are such that they will be able to
give objective evidence and can withstand cross-examination.
If C is a child/protected party – C is incapable of pursuing a claim on
their behalf. Instruct the expert at the right time:
CPR 21.1(2) Child = a person under the age of 18 years. CPR 35.4 A party cannot call an expert or put in expert evidence without
court permission.
s.1-2 Mental Capacity Act 2005 Protected party = a person unable to
make decision when necessary due to impairment/disturbance of mind. Has to court made any directions about expert evidence at this stage?
If not, permission will be required. Seek to agree a draft order for
An adult is presumed to have capacity until proved otherwise. directions the other side’s solicitors. If the other side do not agree, then
apply to court for an order and ask the court to consider expert evidence
CPR Part 21 Test: Is protected party able to understand, with assistance at the CMC. – the application would be made under CPR 23.
from legal advisers/other experts, the issues necessary to understand
in the course of proceedings. An alternative report?
C is restricted to one medical report. If C wants to rely on further
Factors to determine incapacity: evidence, they must apply for court permission. It is unlikely that
a) Can the person recognise problems? the court will permit obtaining a second report simply because the
b) Can the person clearly explain the problem to lawyers? first report was unfavourable to C.
c) Can the person understand/evaluate the advice they receive?
d) Can the person understand the effects of choosing one course Fixed fees for medical report:
of action over another and give instructions? CPR 45.19 Medical report fee is fixed at £180 plus VAT. If C obtains
a medical report above this fixed fee, the cost won’t be recoverable.
When in doubt, solicitor may request an assessment and report by
client’s GP or in serious cases, a psychologist/psychiatrist. Medical expert must be impartial:
Experts must not provide/offer to provide treatment to C and if they
Litigation friend: do so they must not charge a fee.
Court of Protection = court dealing with cases relating to Medical expert must consider both version of events:
children/protected parties. D must provide their version of events to C in response to a claim.
C then must send this to the expert for consideration.
CPR 21.2(1)-(2) Children/protected parties must instruct a litigation
friend to conduct proceedings on their behalf. – eg. parent of minor, Personal injury claims:
family member/friend or solicitor.
In PI claims, C must obtain expert medical advice regarding the injuries
CPR 21.2(3) If they want to conduct proceedings without a litigation (condition and prognosis report) during the pre-action stage.
friend, child/protected party must apply for a court order.
CPR 21.4(2) Court may appoint litigation friend for the protected party. In complex PI claims, also obtain:
* quantum reports regarding financial losses/expenses incurred
CPR 21.4(3) Anyone can act as a litigation friend if they: as a result of the injuries or
• can fairly and competently conduct proceedings * liability report, if liability is in dispute.
• have no conflict of interest with the child/protected party and
• if child/protected party is a C – undertake to pay any costs Medical negligence claims:
orders.
In MN claims, in addition to condition and prognosis reports, also seek
CPR 21.5 Procedure to becoming a litigation friend: expert opinion as to liability and causation. Liability and causation
File certificate of suitability stating that they satisfy the CPR 21.4(3) experts can be instructed during the pre-action protocol stage without
conditions. court permission.
Settlement and compromise: QUANTUM REPORTS:
CPR 21.10(1) Court approval is needed for accepting settlement/ Condition and prognosis report:
compromise on behalf of a child/protected party.
A condition and prognosis report will help you establish:
If settlement/compromise is reached before the commencement of * C’s injuries
proceedings – commence claim under CPR 8 and request court approval. * C’s treatments
* Future treatments C may need
PD 21 CPR If seeking court approval on behalf of child/protected party: * The extent of any ongoing symptoms
* C’s prognosis (time-scale for recovery)
21 PD 5.1(6)(b) If child/ protected After proceedings are issued: make
party is C in a PI case, before an application for court approval. Instruct experts with different specialities depending on the type of
proceedings are issued: must file Para 6.4(3) Send to court the injury.
medical and quantum reports and quantum of counsel/solicitor
joint statements. including all documentary evidence
material to the case. Additional quantum reports:
CPR 21.10(2) C’s litigation friend must issue proceedings to obtain court In complex claims where C requires treatment/daily care:
approval of a settlement/compromise made at pre-action stage. Instruct one of the following experts to quantify the cost of
treatment/living expenses: Aids and Equipment expert,
Control of monies: Physiotherapist, Occupational therapist, Speech therapist, Architect,
Care expert.
CPR 21.11(1) If monies are recovered on behalf of child/protected
party, monies must be dealt with as per court directions. In complex claims where C:
1. cannot return to work for a long time
EXPERTS: 2. can only return to work part-time
3. cannot return to their employment and has to seek lower paid
Selecting the type of expert: employment OR
CPR 35.1 A solicitor must decide on the type of expert necessary to 4. will never return to work
assist court in resolving the issues in dispute.
Medical Negligence – All chapters – Revision Notes | Page 2 of 19
, Instruct any of the following experts to quantify future loss of earnings
and loss of pension: Employment consultant, Forensic accountant,
LEGAL AID FUNDING:
Actuary/pension’s expert Explain to client how their publicly funded status will affect the costs.
Obtaining an expert report: Personal injury:
Part 2 Sched 1 Legal Aid, Sentencing and Punishment of Offenders Act
Do not obtain expert evidence until seeking a court direction that such 2012 Excluded from legal aid: PI or death. Such cases are suitable to run
expert evidence is necessary or you may be punished in terms of costs. on a conditional fee agreement or Damages Based Agreement basis.
Joint selection: *C selecting both experts or single joint expert* Medical negligence:
The tactical advantage of joint selection is to put D on the back foot LASPO 2012 Most MN claims are excluded except for infants left
regarding obtaining its own evidence. severely disabled due to MN.
Para 23 Part 1 LASPO 2012 Legal aid is available if medical negligence
caused a neurological injury and C is severely disabled as a result.
C solicitor proposes one or more expect(s)
NO WIN NO FEE AGREEMENTS:
Within 14 days
Conditional fee agreements (CFA):
D solicitor does not object C solicitor objects to all experts
CFA = an agreement between a solicitor and client where payment of the
C solicitor instructs expert from the C and D solicitors can instruct solicitor’s fees is conditional on winning the claim.
proposed list. C and D solicitors can their own expert, if not
then put questions to expert. agreed. s.58 CLSA 1990 CFAs must:
1. Be in writing
D solicitor cannot obtain own If proceedings are issued, 2. State the level of success fee (max 100%)
evidence unless agreed by C court will consider whether 3. State that success fee is subject to a maximum limit
solicitor or court the parties acted reasonably 4. Max limit must be expressed as a percentage of damages and
must not exceed 25% of damages in PI cases – s.44 LASPO 2012
Single joint instruction: If the client wins the case:
PD 35 Instructing one single joint expert will minimise costs and delays. Pays to the solicitor: basic fee, disbursements, success fee (pays out of
CPR 35.7 The court may make a direction to use a single joint expert. pocket), insurance premium (pays out of pocket).
PI Pre-action Protocol The joint selection of experts should be Recovers from the other side: solicitor’s basic fee, solicitor’s
encouraged rather than joint instruction. disbursements, damages
Liability experts: If the client loses the case:
Pays to the solicitor: disbursements, insurance premium and damages
PI claims: if there is a successful counterclaim
If liability is in dispute or it is difficult to establish the cause of accident, Recovers from the other side: nothing
instruct a liability expert.
Damages based agreements (DBA):
MN claims:
* A liability report must always be obtained as a first step. Expert Reg 3 DBA Regs 2013 DBA’s terms and conditions must explain why
opinion will determine whether the clinician’s actions/failure to payment was set at that percentage.
act fell below the standard expected of a reasonably competent
clinician in that field. s.45 LASPO 2012 DBAs must:
* If so, also obtain a causation report to establish if the clinician’s 1. Be in writing
actions/failure to act caused the injury. 2. Not require payment by client apart from costs, counsel’s fees
and VAT – Reg 4 DBA Regs 2013
One expert is usually sufficient. 3. Be made only after the lawyer has explained the DBA’s terms and
conditions
Obtain all necessary evidence to prove C’s claim but do not obtain 4. Not set out a payment above the limit:
evidence not reasonably required for the resolution of the claim. * 25% of damages in PI cases
* 35% of damages in employment cases
Do not use an expert who: * 50% of damages in all other cases
• is involved in the case
• works at the same hospital/practice as D or If lawyers lose the case, they do not recover any fees.
• treated C as they may be unduly optimistic in the prognosis.
Status of reports: INSURANCE:
Own expert evidence: After the event (ATE) insurance:
If a party obtains its own medical report after a pre-action protocol ATE = insurance is only taken out once the event has occurred. – eg. the
commenced and does not rely on it, that report will be privileged. accident.
However, that party will need court permission before relying on
another expert’s report. Criteria: Merits of the case + the level of cover required, i.e. whether
the insurance company is willing to take on the risk and on what terms.
All expert reports in relation to a claim must be disclosed, whether
favourable or not. ATE is purchased by paying a single premium. ATE premiums are more
expensive (min. 25% of the insurance cover).
If an expert produced more than one report but disclosed only one, the
expect cannot be ordered to disclose the report if that would give rise If a client loses, insurance company will pay: client’s solicitor’s
to injustice. disbursements + his opponent's legal costs and disbursements.
Discussions between experts: Before the event (BTE) insurance:
CPR 35.12 The court may direct that experts have a discussion to: BTE insurance provides the client with an indemnity for the cost of any
a) identify and discuss issues and legal fees incurred as a result of any such future litigation. BTE
b) to agree on the opinion on those issues if possible premiums are relatively low (less than 1% of the insurance cover).
FUNDING Clients may already have a BTE insurance, as part of an existing policy.
– Eg. a client may have BTE as part of their motor vehicle insurance or
Funding options: household insurance.
* Privately paying
* Trade union funding: If client is a Trade Union (TU) member,
the TU may be willing to fund the claim.
* No win, no fee agreements: CFAs and DBAs
* Legal aid
* Insurance
Medical Negligence – All chapters – Revision Notes | Page 3 of 19
will expire on 15 Sep 2020. Ann will have until that date to issue a claim.
TYPES OF CLAIM: Date of knowledge:
A Claimant (C) may also bring a claim after the limitation period. – Eg. it
Road Traffic Accident (RTA) Public Liability (PL) may be years after an operation when the patient experiences
unexpected symptoms. This is also common for industrial disease cases.
An injury arising out of a road An injury arising out of use of public
traffic accident. – eg. two cars products/premises. – eg. walking on the s.14 LA 1980 Injured party will have knowledge when they realise that:
collide. street and falling over the uneven paving. a) injury was significant
b) it was attributable (wholly/partially) to the act/omission
constituting negligence/nuisance/breach of duty
c) C knows the identity of D
Employers Liability (EL) Medical Negligence (MN) AND
d) if act/omission was that of a person other than D, the identity
An injury arising during the A patient suffers an injury due to of that person and the additional facts support the claim.
course of employment. – eg. negligent treatment carried out by a
injury due to defective medical professional (doctor/nurse/
machinery. dentist) – eg. operating on wrong patient. Expectation to acquire ‘knowledge’:
If C wants the limitation period to start from their date of knowledge, C
must prove the date when they acquired the knowledge.
FIRST INTERVIEW: s.14 LA 1980 Knowledge includes constructive knowledge.
Firms dealing with personal injury (PI) and medical negligence (MN) Constructive knowledge = knowledge that they reasonably would have
often offer a free first interview. – encouraging to clients been expected to acquire by making enquiries/seeking expert advice.
Identify facts: Persons under a disability:
* Encourage client to tell their story. Exception to the limitation period: if one of the parties has a disability.
* Assess whether client has a cause of action. s.38(2) LA 1980 A party is legally disabled if:
* Establish what evidence is missing for proving liability (duty and * they lack capacity to conduct proceedings – Mental Capacity
breach), causation and quantum (the value of the claim). Act 2005
To establish liability: OR
* Carry out a site visit * they are an infant (under 18)
* Obtain photos of the accident location s.28(6) LA 1980 If C is under a disability on the date when cause of action
* Obtain witness statements accrued, limitation period expires 3 years from the date when the
* Obtain a liability expert’s report disability ceases.
* Obtain evidence of a criminal conviction
* Retain real evidence for inspection – machinery, torn clothing Example:
To establish quantum: If an accident occurred on 15 Mar 2015, but injured party is an infant
* Collect receipts/invoices from client – medication receipts (DoB: 16 Feb 2000), limitation period does not expire until 3 years after
* Collect occupational records/payslips – to prove lost earnings the injured party’s 18th birthday (16 Feb 2021). If a PI accident occurred
* Ask client to keep diary as to how their injuries affect them in on 15 Apr 2015 and the injured party lacks capacity on that date, the
their daily life – eg. unable to walk and go to work. limitation period does not expire until 3 years after the date when the
* Obtain photos of client’s injury – bruising/swelling/scarring may disability ceased (20 Jul 2018).
improve over time Extending the limitation period:
* Obtain witness statements If C fails to commence a claim within the primary limitation period, C
* Obtain medical evidence becomes barred from commencing a claim.
Ask client about their goals. A solicitor can only claim for compensation, s.33 LA 1980 C can apply to extend the limitation period. The court has
not an apology. Note that your client may only want an apology. discretion to extend the limitation period if it would be equitable to do
Ascertain if the client has a claim worth pursuing. If so, advise about the so, having regard to the balance of prejudice to each party.
funding options available to client. s.33(3) Court should consider all the circumstances of the case such as:
Preliminary advice: a) Length/reasons for the delay
* Limitation – Ask client the date of the accident to calculate the b) Effect of the delay on the cogency of evidence
expiry date of the limitation period. If no obvious accident date c) D’s conduct
– find out when client had ‘knowledge’ of a claim. d) Duration of C’s disability arising after the cause of action
* Liability – If the Defendant (D) is likely to be liable and how likely e) Whether C has acted promptly and reasonably once they knew
it is that will client win the case. that the injury was attributable to a negligent act/omission
* Damages – let client know: advice is subject to further evidence. AND
Quantum calculation is not precise at this stage. f) The steps C took to obtain medical/legal/other expert advice and
the nature of advice. – eg. if received bad advice
Give client a time and costs estimate of the claim. The court should apply a subjective test when considering why C
CPR 44.2 General costs principle applies. delayed.
LIMITATION PERIOD: *POPULAR EXAM Q* ADMISSIONS OF FACT/LIABILITY:
Primary limitation period – PI claims: In order to save time and costs, CPR encourages parties to make
3 years from: admissions of fact/liability.
1. date on which the cause of action accrued – accident date CPR 14.1(1)-(2) Admissions may be made pre-action or after bringing a
OR claim by written notice to the other party. C may then enter judgment
2. s.11(4) Limitation Act 1980 date of knowledge of injured party (except if children/protected parties are involved).
whichever is later. Effect of an admission:
Don’t include: the date when the action accrued/date of knowledge. * Only quantum will have to be resolved OR
* if insurer withdraws the admission of liability – C has to revert
If there is more than one injured party, they must make a separate to proving their claim against D.
claim and the limitation period for all of those claims will be calculated Withdrawal of an admission:
separately.
Example: A party may withdraw a pre-action admission:
Ann was involved in an accident at 9 pm on 15 Sep 2017. When does the 1. Before commencement, by giving notice in writing, if the other
limitation period expire? – The limitation period for PI claims is 3 years party agrees - CPR 14.1A(3)(a)
2. After commencement, if the other party agrees or with court
permission - CPR 14.1A(3)(b)
Medical Negligence – All chapters – Revision Notes | Page 1 of 19
,14 PD 7.2 When deciding on giving permission, court will consider: C solicitor: Ensure that you understand client’s medical problems/
* grounds for withdrawing the admission financial losses.
* if new evidence has come to light
* the parties’ conduct D solicitor: Ensure that you understand client’s medical problems/
* prejudice to any person if the admission is withdrawn/refused financial losses. Ensure that you have all evidence to value C’s case but
* at which stage in the proceedings the application is made avoid paying for unnecessary reports.
* prospects of success if the admission is withdrawn
* interests of the administration of justice Selecting an expert:
1. someone whose integrity is beyond doubt
CHILDREN AND PROTECTED PARTIES: 2. whose experience/reputation are such that they will be able to
give objective evidence and can withstand cross-examination.
If C is a child/protected party – C is incapable of pursuing a claim on
their behalf. Instruct the expert at the right time:
CPR 21.1(2) Child = a person under the age of 18 years. CPR 35.4 A party cannot call an expert or put in expert evidence without
court permission.
s.1-2 Mental Capacity Act 2005 Protected party = a person unable to
make decision when necessary due to impairment/disturbance of mind. Has to court made any directions about expert evidence at this stage?
If not, permission will be required. Seek to agree a draft order for
An adult is presumed to have capacity until proved otherwise. directions the other side’s solicitors. If the other side do not agree, then
apply to court for an order and ask the court to consider expert evidence
CPR Part 21 Test: Is protected party able to understand, with assistance at the CMC. – the application would be made under CPR 23.
from legal advisers/other experts, the issues necessary to understand
in the course of proceedings. An alternative report?
C is restricted to one medical report. If C wants to rely on further
Factors to determine incapacity: evidence, they must apply for court permission. It is unlikely that
a) Can the person recognise problems? the court will permit obtaining a second report simply because the
b) Can the person clearly explain the problem to lawyers? first report was unfavourable to C.
c) Can the person understand/evaluate the advice they receive?
d) Can the person understand the effects of choosing one course Fixed fees for medical report:
of action over another and give instructions? CPR 45.19 Medical report fee is fixed at £180 plus VAT. If C obtains
a medical report above this fixed fee, the cost won’t be recoverable.
When in doubt, solicitor may request an assessment and report by
client’s GP or in serious cases, a psychologist/psychiatrist. Medical expert must be impartial:
Experts must not provide/offer to provide treatment to C and if they
Litigation friend: do so they must not charge a fee.
Court of Protection = court dealing with cases relating to Medical expert must consider both version of events:
children/protected parties. D must provide their version of events to C in response to a claim.
C then must send this to the expert for consideration.
CPR 21.2(1)-(2) Children/protected parties must instruct a litigation
friend to conduct proceedings on their behalf. – eg. parent of minor, Personal injury claims:
family member/friend or solicitor.
In PI claims, C must obtain expert medical advice regarding the injuries
CPR 21.2(3) If they want to conduct proceedings without a litigation (condition and prognosis report) during the pre-action stage.
friend, child/protected party must apply for a court order.
CPR 21.4(2) Court may appoint litigation friend for the protected party. In complex PI claims, also obtain:
* quantum reports regarding financial losses/expenses incurred
CPR 21.4(3) Anyone can act as a litigation friend if they: as a result of the injuries or
• can fairly and competently conduct proceedings * liability report, if liability is in dispute.
• have no conflict of interest with the child/protected party and
• if child/protected party is a C – undertake to pay any costs Medical negligence claims:
orders.
In MN claims, in addition to condition and prognosis reports, also seek
CPR 21.5 Procedure to becoming a litigation friend: expert opinion as to liability and causation. Liability and causation
File certificate of suitability stating that they satisfy the CPR 21.4(3) experts can be instructed during the pre-action protocol stage without
conditions. court permission.
Settlement and compromise: QUANTUM REPORTS:
CPR 21.10(1) Court approval is needed for accepting settlement/ Condition and prognosis report:
compromise on behalf of a child/protected party.
A condition and prognosis report will help you establish:
If settlement/compromise is reached before the commencement of * C’s injuries
proceedings – commence claim under CPR 8 and request court approval. * C’s treatments
* Future treatments C may need
PD 21 CPR If seeking court approval on behalf of child/protected party: * The extent of any ongoing symptoms
* C’s prognosis (time-scale for recovery)
21 PD 5.1(6)(b) If child/ protected After proceedings are issued: make
party is C in a PI case, before an application for court approval. Instruct experts with different specialities depending on the type of
proceedings are issued: must file Para 6.4(3) Send to court the injury.
medical and quantum reports and quantum of counsel/solicitor
joint statements. including all documentary evidence
material to the case. Additional quantum reports:
CPR 21.10(2) C’s litigation friend must issue proceedings to obtain court In complex claims where C requires treatment/daily care:
approval of a settlement/compromise made at pre-action stage. Instruct one of the following experts to quantify the cost of
treatment/living expenses: Aids and Equipment expert,
Control of monies: Physiotherapist, Occupational therapist, Speech therapist, Architect,
Care expert.
CPR 21.11(1) If monies are recovered on behalf of child/protected
party, monies must be dealt with as per court directions. In complex claims where C:
1. cannot return to work for a long time
EXPERTS: 2. can only return to work part-time
3. cannot return to their employment and has to seek lower paid
Selecting the type of expert: employment OR
CPR 35.1 A solicitor must decide on the type of expert necessary to 4. will never return to work
assist court in resolving the issues in dispute.
Medical Negligence – All chapters – Revision Notes | Page 2 of 19
, Instruct any of the following experts to quantify future loss of earnings
and loss of pension: Employment consultant, Forensic accountant,
LEGAL AID FUNDING:
Actuary/pension’s expert Explain to client how their publicly funded status will affect the costs.
Obtaining an expert report: Personal injury:
Part 2 Sched 1 Legal Aid, Sentencing and Punishment of Offenders Act
Do not obtain expert evidence until seeking a court direction that such 2012 Excluded from legal aid: PI or death. Such cases are suitable to run
expert evidence is necessary or you may be punished in terms of costs. on a conditional fee agreement or Damages Based Agreement basis.
Joint selection: *C selecting both experts or single joint expert* Medical negligence:
The tactical advantage of joint selection is to put D on the back foot LASPO 2012 Most MN claims are excluded except for infants left
regarding obtaining its own evidence. severely disabled due to MN.
Para 23 Part 1 LASPO 2012 Legal aid is available if medical negligence
caused a neurological injury and C is severely disabled as a result.
C solicitor proposes one or more expect(s)
NO WIN NO FEE AGREEMENTS:
Within 14 days
Conditional fee agreements (CFA):
D solicitor does not object C solicitor objects to all experts
CFA = an agreement between a solicitor and client where payment of the
C solicitor instructs expert from the C and D solicitors can instruct solicitor’s fees is conditional on winning the claim.
proposed list. C and D solicitors can their own expert, if not
then put questions to expert. agreed. s.58 CLSA 1990 CFAs must:
1. Be in writing
D solicitor cannot obtain own If proceedings are issued, 2. State the level of success fee (max 100%)
evidence unless agreed by C court will consider whether 3. State that success fee is subject to a maximum limit
solicitor or court the parties acted reasonably 4. Max limit must be expressed as a percentage of damages and
must not exceed 25% of damages in PI cases – s.44 LASPO 2012
Single joint instruction: If the client wins the case:
PD 35 Instructing one single joint expert will minimise costs and delays. Pays to the solicitor: basic fee, disbursements, success fee (pays out of
CPR 35.7 The court may make a direction to use a single joint expert. pocket), insurance premium (pays out of pocket).
PI Pre-action Protocol The joint selection of experts should be Recovers from the other side: solicitor’s basic fee, solicitor’s
encouraged rather than joint instruction. disbursements, damages
Liability experts: If the client loses the case:
Pays to the solicitor: disbursements, insurance premium and damages
PI claims: if there is a successful counterclaim
If liability is in dispute or it is difficult to establish the cause of accident, Recovers from the other side: nothing
instruct a liability expert.
Damages based agreements (DBA):
MN claims:
* A liability report must always be obtained as a first step. Expert Reg 3 DBA Regs 2013 DBA’s terms and conditions must explain why
opinion will determine whether the clinician’s actions/failure to payment was set at that percentage.
act fell below the standard expected of a reasonably competent
clinician in that field. s.45 LASPO 2012 DBAs must:
* If so, also obtain a causation report to establish if the clinician’s 1. Be in writing
actions/failure to act caused the injury. 2. Not require payment by client apart from costs, counsel’s fees
and VAT – Reg 4 DBA Regs 2013
One expert is usually sufficient. 3. Be made only after the lawyer has explained the DBA’s terms and
conditions
Obtain all necessary evidence to prove C’s claim but do not obtain 4. Not set out a payment above the limit:
evidence not reasonably required for the resolution of the claim. * 25% of damages in PI cases
* 35% of damages in employment cases
Do not use an expert who: * 50% of damages in all other cases
• is involved in the case
• works at the same hospital/practice as D or If lawyers lose the case, they do not recover any fees.
• treated C as they may be unduly optimistic in the prognosis.
Status of reports: INSURANCE:
Own expert evidence: After the event (ATE) insurance:
If a party obtains its own medical report after a pre-action protocol ATE = insurance is only taken out once the event has occurred. – eg. the
commenced and does not rely on it, that report will be privileged. accident.
However, that party will need court permission before relying on
another expert’s report. Criteria: Merits of the case + the level of cover required, i.e. whether
the insurance company is willing to take on the risk and on what terms.
All expert reports in relation to a claim must be disclosed, whether
favourable or not. ATE is purchased by paying a single premium. ATE premiums are more
expensive (min. 25% of the insurance cover).
If an expert produced more than one report but disclosed only one, the
expect cannot be ordered to disclose the report if that would give rise If a client loses, insurance company will pay: client’s solicitor’s
to injustice. disbursements + his opponent's legal costs and disbursements.
Discussions between experts: Before the event (BTE) insurance:
CPR 35.12 The court may direct that experts have a discussion to: BTE insurance provides the client with an indemnity for the cost of any
a) identify and discuss issues and legal fees incurred as a result of any such future litigation. BTE
b) to agree on the opinion on those issues if possible premiums are relatively low (less than 1% of the insurance cover).
FUNDING Clients may already have a BTE insurance, as part of an existing policy.
– Eg. a client may have BTE as part of their motor vehicle insurance or
Funding options: household insurance.
* Privately paying
* Trade union funding: If client is a Trade Union (TU) member,
the TU may be willing to fund the claim.
* No win, no fee agreements: CFAs and DBAs
* Legal aid
* Insurance
Medical Negligence – All chapters – Revision Notes | Page 3 of 19
