In the fourth part of the series we give an overview of the court proceedings stage.
If the parties fail to solve the
dispute by following the Professional Negligence Pre-Action Protocol, then the
claimant will need to decide whether or not to issue court proceedings.
Claimants should bear in mind that they are
likely to be ordered to pay the defendant professional’s legal costs if the
claim is unsuccessful. It may be
possible to obtain ‘after the event’ insurance to protect against this risk and
a claimant should discuss this with his or her legal advisers.
The first stage in commencing
court proceedings is to prepare a claim form and particulars of claim. The particulars of claim set out the basis of
the claim in detail (ie the relevant facts, duty of care, breach, causation and
loss).
Once a claim has been issued it
must be served upon the defendant or solicitors authorised to accept service on
behalf of the defendant.
It is
relatively rare for cases to proceed all the way to trial. However, there are a number of stages before
trial and it is not unusual for claims to take over a year to reach that
stage. The parties will
have to deal with matters such as disclosure, exchange of witness statements,
expert evidence (if applicable) and preparation for trial.
The rules and procedures (The Civil Procedure
Rules) are complex and it is certainly advisable for claimants to have legal
representation.