How are Claims Settled?
There are quite a few options available, as outlined below.
Sometimes a case may settle early, without the need for any further action, under the Pre-Action Protocol procedure, set down by the UK Courts.
Before issuing of court proceedings, a patient intending to claim for compensation is required to submit a detailed Letter of Claim to the proposed Defendant. The Letter sets out the background to the proposed case, the allegations of substandard care, how that has caused injury to the patient and, in as much detail as possible at that stage, the value of the claim.
The proposed Defendant then has a 4 month period to consider the letter and to provide a formal response. Sometimes a strong case may be settled at this early stage, but it is more usual, particularly in higher value cases, for a proposed defendant to indicate that they intend to defend a claim.
For more about the Pre-Action Protocol click here.
Settlements between Solicitors
Cases can be settled by way of telephone conversations between a patient’s solicitor and the solicitor for the Defendant at any stage during the case. Also, by way of one party making a formal written offer to the other party that is accepted. If proceedings have been issued in Court, then a form of Order is then agreed and sent to court to be stamped, and that is the end of the case–no Trial. However, it is commonplace now for there to be various kinds of meetings arranged to try and attempt settlement without a Trial.
Joint Settlement Meetings
We advise all our clients that claims brought in clinical negligence can take a long time before a conclusion is reached. Rarely, cases do end up at Trial in Court before a Judge, but this should is a last resort and the vast majority of cases that Medical Solicitors take on settle before this stage.
A Joint Settlement Meeting (JSM) is where all parties to a claim get together and talk about your case, to narrow the issues and try to achieve a settlement. It can occur at any time and can be proposed by either side after Court proceedings have started. However, such meetings are more often offered at a late stage in the case, in the last 2-6 months before the Trial dates. It is rare for cases not to settle at a joint settlement meeting. Most of the time both parties are motivated to attend a meeting and make serious attempts to settle.
On the day, the Claimant, with their legal team your solicitor and, if necessary, your barrister), and the defendant’s legal team, often with a person in authority from the Defendant’s insurers will attend. Access to three rooms is arranged, the Claimant and their team having sole use of one room as a ‘base.’ Another room being for the Defendant’s teams sole use, and a third room where everyone can meet and joint discussions can take place. Your solicitor and barrister will take part in the discussions in the joint room, leaving you in the ‘base’ room, after which they will return to you to advise on what has been said and any offers that have been made to settle the case.
There is no requirement, or guarantee that the case will end on the day and any party can walk away when they choose. However, at Medical Solicitors we do our best to secure promises from a Defendant that it is not a waste of time bringing a client to a JSM and that the Defendant genuinely intends to attempt a reasonable settlement.
Alternatively, there can be a different style of meeting, called a ‘Mediation’ that requires the services of an independent professional Mediator, as a neutral party. The impartial Mediator will go between the parties’ separate rooms, to help settle the claim. There is also a third meeting place where the parties and the Mediator can come together to discuss the case.
A mediator is not the same as a Judge, but Mediators are selected by the parties, by way of mutual agreement, for their particular experience in an area of the law, as well as working with parties to reach settlement.
The Mediation process usually starts with you meeting your legal team and going to your ‘base’ room to get settled in for the day. Then all the parties will meet in a separate room, to take turns in explaining their view of the case and the different elements to be considered. If there are any queries at this stage, questions can be asked to help clarify the issues. It varies case by case as to whether or not you will actually be advised to go into the joint room at this stage, or better advised to stay in the ‘base’ room and leave these discussions to your legal advisers.
Each party will then retire to their separate rooms where the Mediator can have individual, and confidential, discussions with them to explore possible solutions. If the parties reach an agreement, then they sign a written document with the details of it.
The only downside to this approach, in comparison to a JSM style meeting, is the fact that a professional mediator’s services can be expensive. However, sometimes there may be reasons unique to a particular case that make it particularly advantageous to have a Mediator on board.
There is a new and exciting arbitration scheme for personal injury cases that the parties can elect to follow as an alternative to becoming involved in protracted court proceedings. It is a cheaper option than paying court fees, as the courts have increased fees dramatically, of late. The scheme allows the parties solicitors to choose from a list of appointed senior barristers (Queen’s Counsel). The chosen senior barrister takes the role of a ‘Judge’ in the arbitration process. Arbitration should be faster so patients succeeding in their claims will receive compensation quicker.
A fee of £1600 is payable and the Judge manages the case and issues orders directing the parties to file their evidence on-line within specified timescales. Once all evidence has been submitted the Judge can be invited to give an early neutral written evaluation of how they see the issues, and who they think will win. The parties can then settle on that basis, or choose to have a Joint Settlement Meeting (as discussed above) and if all else fails, a Trial can be held, but it does not involve going into a court building. The parties give their evidence at a private venue agreed by the parties and then the Judge, having heard the evidence, will give Judgement in the case.
About Medical Solicitors
Our friendly team of specialist lawyers at Medical Solicitors have the expertise to help you succeed in a medical negligence claim for compensation if you have suffered from poor care.
Compensation can be claimed where there has been inappropriate advice given concerning treatment options and the risks and benefits of the various options, where there have been excessive delays in providing you with treatment, or where there has been substandard care that amounts to actual Medical Negligence.
Do contact our friendly team of specialist lawyers at Medical Solicitors. We conduct most of our Clinical and Medical Negligence claims under ‘No Win, No Fee’ agreements, also known as Conditional Fee Agreements. So, you do not have to worry about how you are going to afford to bring a medical compensation claim. You have nothing to lose in speaking to us.
Follow our links below to quickly access our information pages about how we can help with a complaint about care, Inquests, funding a medical negligence claim and more:
- defining your needs after poor medical care
- complaining about care
- Inquests into a death
- funding a medical negligence claim
- Conditional fee agreements
- Time limits
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