Could you bring your claim yourself?
Recent changes in the law around the funding of legal cases – including changes to the system known as ‘no win no fee’ – have encouraged more and more people to consider bringing legal claims on their own behalf. The severe restriction of the types of case for which legal aid can be claimed, introduced via the Legal Aid, Sentencing and Punishment of Offenders Act 2012, mean that growing numbers of claimants are looking into the possibility of mounting their own claims in personal injury cases.
The basics of personal injury claims
The basic principles of any claim for personal injury are fairly straightforward. The first factor which needs to be in place is that you have suffered an injury or illness, and that the cause of this injury was the negligence of a third party. In some circumstances – such as a road traffic accident in which the blame can clearly be apportioned – this might be a fairly straightforward matter. Indeed, many personal injury claims of this nature, when negligence is easy to establish, are settled without any legal action having to be taken. When it comes to establishing negligence in cases of clinical negligence, however, the complex nature of the evidence in question – dealing as it does with often arcane scientific and medical issues – tends to render the cases far more difficult to mount.
Establishing clinical negligence
You may feel extremely strongly that the medical treatment you received fell below the standard you were hoping for, and that this drop in standards resulted in you suffering an injury or illness. Strong emotions can never be the basis for a legal case, however, and it is vital, if you’re acting upon your own behalf, that you understand the principles and standards of proof upon which cases of clinical negligence are based.
The basic legal test for clinical negligence is known as the Bolam Test. This derives from a direction handed down by the judge in the case of Bolam vs Friern Hospital Management Committee in 1957. The details of the case revolved around an injury suffered by a patient in the process of receiving electro convulsive treatment, and the judgement, following an appeal to the House of Lords, stated that:
“…a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…”
What this is usually taken to mean is that a clinical practitioner isn’t guilty of negligence if most other practitioners, in the same circumstances, would have delivered the same course of treatment. In recent years, however, the law has been interpreted slightly more flexibly, using a legal standard known as the Bolitho Test, which calls for the courts to consider ‘what ought to have been done’ rather than simply how what was done would have been regarded by the peers of the practitioner in question. This allows cases to be judged against the possibility of other possible courses of treatment which weren’t chosen, and prevents current practice being used as the yardstick for negligence even in cases when the court feels that current practice isn’t logical and reasonable.
The time limit for starting claims for clinical negligence is, as is the case for other personal injury claims, three years. The difference between most other cases and clinical negligence cases, however, is that the three years in question is dated not from the time of the negligence, but from the date upon which the claimant became aware of the injury which had been caused. This is to make allowances for the fact that the detrimental effects of many instances of clinical negligence only begin to make themselves felt some time – perhaps as long as several years – after the medical treatment in question.
All of these factors – the complexity of proving negligence and then of proving that said negligence was responsible for the injuries involved, the intricacies of the time limit, particularly in cases involving children or the incapacitated, and the highly specific nature of the evidence involved – come together to make clinical negligence cases amongst the most complex and lengthy which most solicitors handle, and taking this in your own hands would be an act of some courage, not to say recklessness.
Assembling a claim
The first part of putting together a claim for clinical negligence will involve setting down in writing exactly what happened, when it happened, who you dealt with and why you consider it to be negligent. You can bolster this case by asking for access to your medical records, which have to be provided under the Data Protection Act 1998. No matter how firmly held your beliefs are, however, it is unlikely that they will have much impact upon the clinical practitioner concerned unless you are able to back them up with the opinions of a medical expert. Medical experts qualified in the precise field of medicine around which your case revolves, and with experience of helping with negligence claims, can be found at websites such as:
In the first instance such an expert will examine your medical records and write a report setting out whether they feel you were the victim of negligence. It should be realised that such an expert has a duty, first and foremost, to the court and to the process in general, and that, although you will be paying for their services, they will feel no pressure to tell you what they think you want to feel. The opinions they give will be honest and independent, and their report will form part of your case moving forward.
Funding your claim
The medical expert is likely to be the biggest expense in terms of putting your own claim together and, with legal aid no longer available for most medical negligence claims (excluding those in which a child suffers neurological injury causing severe disability during pregnancy, childbirth or the first 8 weeks of the post natal period), the chances are that you’ll have to be paying out of your own pocket for their services, unless you’re fortunate enough to be able to access legal expenses insurance. If you’re pursing a case yourself because a clinical negligence solicitor spurned the opportunity to launch a case under a Conditional Fee Arrangement, then it should be borne in mind that an experienced solicitor will only do so if they feel your chances of victory is less than 60%. This opinion will be based on precedent and years of experience and, in legal terms, carries much more weight than your own grievances, however genuinely felt.
It should be remembered that even if you manage to keep costs down by representing yourself throughout the process, the biggest risk is the bill you might face if your claim is unsuccessful. Clinical negligence claims can often take years to finalise, and the defendant will doubtless assemble a team of solicitors, experts and barristers, all of whom you will be paying for in the event of a losing verdict. This could easily run into hundreds of thousands of pounds, and the impact this would have on your life should be carefully considered before you embark upon bringing your own claim.
NHS Litigation Authority
The majority of clinical negligence cases are launched against the NHS, and are dealt with by the NHS Litigation Authority (NHSLA), an independent body expressly created for this purpose. According to NHSLA statistics, only 2% of the cases they deal with ever get as far as a court room. The vast majority of the cases are either dropped by the claimant or settled via an agreement between the two sides. It has to be accepted, however, that if you are representing yourself then the defendants legal team may well feel that your lack of legal expertise makes fighting a case a far more appealing prospect. Alternatively, they may feel that you are far more likely than an experienced clinical negligence solicitor to cut your losses and accept the first offer they make, rather than holding out for the amount you genuinely deserve.
Litigating in person
If you do decide to go ahead with your own claim, and no settlement is reached utilising a form of alternative dispute resolution such as mediation, then you may end up representing yourself in court. Recent funding changes, outlined above, have led to a huge rise in the numbers of people litigating in person, and the Bar Council has issued a detailed and extremely useful guide to representing yourself in court. Advice featured in the guide includes:
- Pack all relevant documents, plus those that you’re not certain will be relevant.
- Spend the days before any trial familiarising yourself with the details of all written statements, both your own and those of the defence.
- Take a laptop and/or stationery for making notes as things proceed.
- Use highlighter pens or post it notes to keep track of key documents.
The rise in the number of people litigating in person (LiP)- which is to say representing themselves in court – has been noted by the UK parliament, which commented not only on the higher number of people doing so but also on the fact that many LiPs were now representing themselves not through choice but through a lack of alternative funding options.
This increase has led to guidelines being drawn up by the Bar Council, the Law Society and the Chartered Institute of Legal executives (CILEx). The advice contained within offers a taste of just how complex the operation of a courtroom can be, a complexity which is compounded many times over by the introduction of clinical negligence issues. The advice includes:
- If you telephone the lawyer, they may not always be available to take or return your call straight away and it may not always be appropriate for the lawyer to speak to you directly (for example if they are a barrister who is acting on a solicitor’s instructions) although in that event you are likely to be told who you should speak to instead.
- It is always better to put any proposals in writing. Keep a copy for yourself. You should receive replies in writing. The lawyer will need enough time to take their client’s (the other side’s) instructions before they reply to you.
- If you send any documents to the court for the judge to see you should also send a copy to the other side’s lawyer. They are entitled to see anything that the judge will see. Whenever the lawyer writes to the court, they should send a copy to you.
- The lawyer cannot give you legal or tactical advice but can explain the court procedures to you.
- It is not unusual for those who are involved in a case to have discussions outside court before going before the judge. These discussions can be helpful in clarifying what is already agreed and narrowing down the issues that the judge needs to decide. It does not mean that pressure is being put on you to agree matters that you would prefer the judge to decide. Do not be surprised if someone from the lawyer’s office is there to take a note of a discussion so that there is a record of it. This is not intended to intimidate you.
The site www.advicenow.org.uk offers tips on the steps known as the Pre-Action protocol, a set of measures which have to be followed if a legal claim is to be successfully launched. The aforementioned guidelines dealing with LiPs point out that judges do have some flexibility when it comes to dealing with them, which includes:
the freedom to extend or shorten the time for compliance with any rule, practice direction or court order; adjourn or bring forward a hearing; to receive evidence by phone or other means; decide the order in which issues are to be heard; exclude an issue from consideration; take any other step or make any other order for the purpose of managing the case and furthering the overriding objective. The court may exercise these powers on application by one of the parties or of its own initiative. Achieving the overriding objective might require a judge to offer a degree of latitude to a LiP whose preparation and presentation of case does not conform to the court rules, provided that this does not compromise due process.
Despite this flexibility, however, and new Civil Procedure Rules (CPR) introduced in October 2015, which state that judges can ask, or cause to be asked, questions which they feel the LiP would have asked if they had the experience or legal know how, there’s no getting away from the fact that bringing your own claim is a hugely risky endeavour. It would mean that defendants are less likely to settle – hoping that a layperson will ‘blink first’ – that a trial is therefore more likely and that the financial penalty suffered in the event of losing your claim will be huge.