Clinical Negligence

The ‘without prejudice’ rule means that statements made in discussions or communications as part of a genuine attempt to settle a dispute are private and cannot later be put before the Court as evidence of admissions against the interests of the party that made them. For example, a suggestion of a way to settle a dispute made by one party during mediation cannot later be used to indicate that the party had accepted responsibility or to frame any compensation or damages. ‘Without prejudice’ exists to encourage parties to negotiate an agreement rather than depend on the court to make a judgement, both to save cost and reduce pressure on Court. The contents of ‘without prejudice’ communications cannot be divulged to the Court unless it is “without prejudice save as to costs”, when it can then be divulged after the final hearing has been dealt with or the case has been settled.

In the context of an employment dispute, ‘without prejudice’ refers to private settlement discussions that should not be referred to in regular correspondence or to the Employment Tribunal. These can be to settle the dispute, or sometimes employers use this term to discuss possible exit packages with an employee.

A contract term that, if breached, gives the aggrieved party the opportunity to terminate the contract and/or make a claim for damages or losses.

The process at a hearing whereby a party’s solicitor or barrister can ask follow up questions to issues that were raised during the cross examination.

A witness statement is a formal document, addressed to the Court, in which a witness sets out all the facts that they are aware of that apply to the case. They are normally treated as ‘evidence in chief’.

The statutory time limit for making a claim. This varies depending on the case type.

A ‘tort’ is a civil wrong that occurs where someone unfairly causes another person to suffer loss or harm and, in the law of England and Wales, tort describes all civil claims that are not contractual disputes. A person committing a tort is legally liable to the party injured, who may claim financial compensation/damages or an injunction to compel or prevent certain conduct.

Undertakings are a common part of the legal process, and are defined as a legally-binding promise to do, or not do, something.

Special damages describe a range of costs reclaimed as part of a successful claim. These may be out-of-pocket expenses such as travel and accommodation to attend medical appointments, but may also include lost earnings/revenues that are directly attributable to the event, accident or dispute for which the claims has been made.

The standard of proof refers to the amount of evidence that is necessary and needed to prove an assertion or claim in a trial in court – what needs to be established in order to win a case. The standard of proof required varies depending on the type of case. For example, in a medical negligence case, the standard of proof is “on the balance of probabilities”. The claimant must prove that their injury is more likely than not to have been caused by the “breach of duty”. Another way of looking at it is in percentage terms, i.e. 51% or more. This is a much lower standard than in a criminal case where the standard if “beyond reasonable doubt”.

The collective term for the Claim Form, Particulars of Claim and (if appropriate) a Reply.

A written declaration (statement) signed before a Justice of the Peace or a person who is authorised to administer oaths (such as a solicitor) but which is not sworn on any religious book (not “made upon oath”).

In conveyancing matters this is a document similar to a statement made under oath (affidavit), however, it is not sworn. Statutory declarations are commonly used to allow a person to declare something to be true for the purposes of satisfying some legal requirement or regulation when no other evidence is available – for example the use of a right of way.

The process by which legal proceedings are stopped temporarily.

In many types of claim, lawyers may agree to advise clients under a fee agreement (FA). This allows them to charge for their time and also to charge an additional fee if the case is successful.

The formal requirement to give or send documents to an interested party in accordance with specific rules.

The process where the parties agree the outcome without the matter progressing to trial.

Where documents are privileged, a party can refuse to disclose these documents as part of the disclosure exercise. The two main examples of privilege are documents created between a solicitor and a client (legal professional privilege) and negotiations between parties with a view to settling litigation (negotiation privilege).

The document filed by the claimant in order to respond to issues raised by the defendant in a Defence and/or Counterclaim.

Quantum is an assessment of the value of a claim – how it is calculated.

A PPO is an order from the court that stating that the defendant, rather than handing over compensation as a lump sum, should pay an annual amount, frequently in addition to an initial lump sum, to the claimant for the duration of their natural life.

A personal injury trust can be set up to hold and manage a person’s damages to ensure that this money is not taken into account for assessment of means-tested benefits or care contributions.

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