I’ve started my claim - what happens next?

Now that you have signed all the paperwork and returned it, we will start investigating the case on your behalf.

We have mutually agreed to fund your case under the terms of a No Win No Fee Agreement, otherwise known as a Conditional Fee Agreement (CFA).

Pursuing your case on a CFA enables you the opportunity to seek justice when you believe you have been been wronged without you having to pay very expensive legal fees out of your own pocket.

Funding your case in this way enables us to pursue the case at no cost to you if you don’t succeed. If successful, we will attempt to recover the majority of your legal fees from the defendant and deduct a small percentage from your settlement payment to cover the remaining fees (known as a success fee).

You will pay nothing if your claim is unsuccessful as long as you have not been knowingly dishonest and have provided instructions to us when asked, to enable us to pursue your case.

What is a success fee?

If we succeed in pursuing your claim under a No Win No Fee Agreement, you will be compensated for the injury you have suffered and any long-term effects of the injury and the financial loss which flows from your suffering. We will send you a medical negligence questionnaire to complete so that you can assist us in quantifying your loss.

Your claim, if successful, is broken down into two aspects: general damages (pain, suffering and loss of amenity) and special damages (past and future financial loss). It is our job to seek to recover the maximum amount of compensation on your behalf. We will advise you on the value of your claim and take instructions from you to negotiate the best possible settlement with the defendant’s legal representatives.

Once a settlement figure is accepted, as per the agreed terms of the No Win No Fee Agreement (CFA), signed by you, we will confirm the level of success fee to be deducted which is capped at 25%. The deduction is only made from monies relating to pain suffering and loss of amenity and past loss.

This deduction goes towards your legal fees, with further costs chargeable to the defendant. The only other cost that may be deductible at the conclusion of a successful claim is for any After the Event (ATE) insurance cover which we may have advised to be put in place early on in your claim. This is not recoverable from the defendants on success of a claim. If such cover is needed, the cost is dependable on the value of the claim at settlement, and you will be advised of these costs before agreeing to an ATE policy. You are not liable for this payment if your case does not succeed. The important point to consider is that no money comes out of your pocket throughout the claim. It is only deductible in the event of a successful claim.

ATE will likely not be required if you have an existing Legal Expenses Insurance (LEI) in place. You may have LEI attached to a motor or household insurance policy or with a credit card provider. It is worth checking. If you have this cover, there will be no deductions when succeeding with a claim.

How long may my claim take?

A relatively straightforward case may take around 12 months to settle where an early and full admission of liability is made.

Other cases may take between 12 months  to around four years and some even longer depending on the evidence, liability position and ongoing issues arising out of the negligence.

The investigation stage 1

Request for medical records

Now that you have returned your signed paperwork, we will start by requesting your medical records. Health care providers have 30 days from the date they acknowledge our request to provide the records. At times, there may be delays due to staff shortages, resources and requirement for approval before disclosing. We diarise this phase so that if the records have not been received when anticipated, we can then chase up and keep under review until received.

Once all records are received, we will undertake a detailed review having regard to the instructions provided by you from your recollection.

What are we looking for?

When investigating your case, we are not only making sure your recollection of events ties in with what is set out in your medical records, but we are also considering whether the legal aspects of breach of duty of care and causation can be established.

The medical records are important in that they are contemporaneous meaning that they are written at the time or as near to the time that events occur when no-one is contemplating a claim against them. From here we are looking to establish whether a breach of duty has arisen. A breach of duty can arise on many levels in a healthcare setting. The test of whether a healthcare professional has breached their duty of care owed to a patient is whether he or she has failed to meet the standards of a reasonable body of practitioners also skilled in that field of medicine.  However, it is not enough just to establish a breach of duty, it must also be proved, on the balance of probability that as a result, injury was caused. This is known as medical causation.

It is our role as lawyers to consider these aspects when reviewing the records. We will update you following our review and let you know whether we are going to take your case forward. If the records support your claim, we will move to Stage 2. Alternatively, if, after reviewing your records, we do not consider there are sufficient prospects to continue, we will advise you of the reasons why and proceed to close our file of papers.

Stage 1 usually takes between one to four months but sometime can take longer if there is any hold up receiving the records or if; once received further records are thought to be missing or not yet requested which may bear relevance to your case.

Investigation Stage 2

Instructing a medical Expert

If the records support your case, we will look to approach an independent medical expert in the field of medicine where you believe there has been negligence. We need an expert to support your case.

Initially, we may seek a steer from an expert first by sending them an overview of your case and asking whether they think it is worth pursuing and if so, whether they will accept instructions.

We work with many experts who are highly experienced and well regarded in what they do which gives you added assurance of the thorough nature in which we work on your case.

If breach of duty and/or causation appear fairly straightforward, we may at this stage write to the defendant setting out details of your claim in a Letter of Notification. This gives the Defendant an opportunity to investigate your case early on and make early admissions of liability. It can also save costs on both sides in the long run.

If we remain confident in your case, prior to instructing an expert, we will arrange for your medical records to be organised into a paginated core medical bundle. Pagination of records allows all involved in your case to navigate the medical evidence with ease.

Depending on what has gone on we may need input from more than one expert. For example, if you are alleging that your GP has breached their duty of care by failing to or delaying a referral for you, which has caused your outcome to be worse, we would first need an independent report from a GP expert. If they are supportive, we would then need a report from an expert in the field of medicine where you ultimately received your diagnosis to report on causation. They may also be instructed to report on how the breach of duty has impacted your current condition and prognosis. The initial report may take between two to four months to receive. This is generally because independent medical experts who report on medico-legal cases also generally work in the healthcare setting of their discipline. This is an important aspect because you want an expert who works with current standards and practice to be able to consider the standard of reasonable competence that they have been instructed to provide an opinion on. We will ensure before instructing any expert that there is no conflict of interest.

Timescales to obtain and receive further reports will much depend on your ongoing symptoms (if any) and whether further updated medical records may be needed.

If the expert evidence on breach of duty of care and causation is supportive, we will proceed to Stage 2. Alternatively, if the expert(s) don’t support your case, we will advise you of the reasons why, take your instructions and may proceed to close your file of papers.

Investigation Stage 3

Once we have supportive medical expert evidence in relation to breach of duty of care and causation, we will be ready to formally write to the Defendant with a Letter of Claim. This is the process followed in the Pre-Action Protocol for Clinical Negligence. The Letter of Claim sets out the background of your case in detail together with the allegations of breach of duty of care and causation. We will also set out what the claim consists of in relation to general and special damages, the estimated value of your case and how it is funded. These are all requirements of the Pre-Action Protocol. Under the Protocol, the Defendant has 21 days to acknowledge receipt and 4 months to investigate your case. After that time, they must formally respond either with admissions of liability or a denial with reasons why.

During this period, depending on the strength of our expert evidence, we may instruct and obtain further expert evidence to consider your condition and prognosis (how you are currently and when you may likely recover from your symptoms and to what extent). Updated medical records may be requested if you are receiving ongoing treatment. However, sometimes we may wait to obtain this further evidence because we want to see the Defendant’s response or because you are undergoing treatment which can only be assessed further once complete.

Obtaining this evidence will help us to continue to consider the likely value of your case.

Once we receive the Defendant’s Letter of Response, we will review the same and update you and advise you on next steps. If the Defendant admits liability, we will look at the potential valuation of your case. They may admit in whole or in part and put you to proof in relation to the injuries or losses claimed.

If the Defendant denies liability, we will consider this further with you and likely with the expert(s) instructed. This allows us to see whether they maintain their initial opinion. Sometimes, it might be appropriate to have a conference with the expert (usually by telephone). At this stage, we will also instruct a barrister specialised in medical negligence to look over the case and evidence and ask relevant questions to the expert in order to consider the strength of the case. A barrister plays an important role here because they have a lot of experience of how evidence is considered in court and can assist in risk assessing the case. You will be part of the process of discussing your case with the expert(s) and barrister. We will be involved with you throughout to guide you through and put you at ease. This is a fairly informal process.

If the expert remains supportive of your case, we will value your case in so far as possible and following your instructions, we will put forward an offer for the defendant to settle your case. We may have to make an offer reflective of the risks in your case which will be highlighted by the defendant’s response and the expert’s comments.

The Defendant may either agree to accept the offer or negotiate a counteroffer.

If an offer is accepted, you will receive your compensation within 14-21 days, and we will arrange to prepare a bill of the costs we have incurred which will be sent to the Defendants.

If an offer is not accepted, based on the strengths of your case, we will advise you on the process of issuing and serving court proceedings

Issuing and serving proceedings does not mean that the case will go to court or trial. In fact, very few cases end up in a courtroom. This is because the claim either eventually has to be discontinued based on emerging evidence throughout the case or because the Defendants appreciate a risk aspect of losing if they go to trial and therefore settle the case.

If we do advise that the case be issued and served, it is because the expert(s) on board continue to support it and a barrister advises that it is worth continuing. The barrister will be asked to draft the pleadings of your case (similar to the Letter of Claim) called Particulars of Claim and a Schedule of Loss. Once served, the Defendant will have to draft a Defence (similar to the Letter of Response).

The case will then proceed through a Court timetable of Directions where various evidence is disclosed over time. This presents a number of opportunities for both sides to continually evaluate the strengths and weaknesses of their cases to determine whether settlement should and can be achieved or if it will go to Trial.

Once Court proceedings commence, the case can take up to 12 months before it either settles or goes to court.

In the rare eventuality it does go to court, it is up to a Judge on the day to determine whose evidence they prefer to find in favour of.