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Is it a trial to go to trial?

29 Jun 2010

Clare Thompson is a specialist clinical negligence solicitor. She tells us what it’s really like to go to trial & have a verdict handed down in The Royal Courts of Justice in London.

As a clinical negligence solicitor, I am involved in some extremely complex and serious cases where my clients have suffered the consequences of negligent treatment, often resulting in death or disability. In my experience, clients or their families often want to know the likelihood of their claim proceeding to trial. It is difficult to predict but it is very rare for such cases to proceed as far as trial. Whilst many cases settle ‘at the doors of the court’ I recently had the rare experience of one proceeding to a fully contested four-day trial.

The Claim

The claim was made against a GP in respect of an alleged failure to refer my 7-month-old client to hospital with symptoms which warranted further investigation. Within 14 hours my client’s condition had deteriorated significantly and he was admitted to hospital. Tests confirmed meningitis which has left him with brain damage. It was alleged that he would have avoided all damage had he been referred to hospital by his GP the previous day. There was a dispute of fact as to what was said at the consultation with the GP and my client’s mother’s evidence was therefore vital.

The Trial

This was a fully contested four-day trial in Newcastle. Our task was to persuade the judge on the basis of the witness and expert evidence that the GP defendant had been negligent in failing to refer my client to hospital and that my client’s brain damage was caused as a direct result of that delay.  As this was a civil claim, it had to be proven ‘on the balance of probabilities’ that the Defendant had been negligent, a much less rigorous standard than in criminal proceedings where the claim must be proven ‘beyond reasonable doubt’.

The client must be prepared to give evidence in open court. Not only is the witness asked to relive events, which are often distressing, but they will then be cross-examined by the opponent’s barrister. Whilst this isn’t the hostile form of cross-examination shown in TV dramas it is not an enjoyable experience.

The case was presented by a barrister. After four full days of evidence and rigorous cross-examination of the lay and expert witnesses the trial came to an end with closing arguments from the barristers on each side. We knew that our client’s evidence had gone well and that the witnesses had held their ground on cross-examination. Our experts had maintained their positions and our barristers had presented the case impressively. But at the end of the day it was impossible to know which way the judge would go.

CJT – high res

The Waiting Game

The judge’s verdict (the judgment) is rarely handed down immediately. Instead, the judge must consider the evidence and provide a detailed written paper setting out her decision and the reasons for this. In this case we waited 17 weeks. Whilst this was a tense time for the legal team I cannot begin to imagine how difficult a wait this was for my client’s family.

The Judgment

A draft of the judgment is sent to the legal representatives a day before it is officially handed down in court. This is to give the losing side the opportunity to consider whether there are grounds for appeal. The legal representatives are prohibited from divulging the verdict to their client until it is made ‘official’. The judge had found in my client’s favour. This was a fantastic result.

It was a real highlight of my career to travel to London to hear the judgment being handed down in the Royal Courts of Justice. The judge confirmed her verdict and refused the Defendant’s application to appeal.  Our team telephoned my client’s mother to advise her of the result. To say she was delighted is an understatement and it was a real joy to give her the good news.

I am now obtaining evidence to confirm the costs involved in caring for my client over his lifetime. If an appropriate amount of damages cannot be agreed with the Defendant’s representatives, this will be assessed by a judge at a further trial next year. Now when clients ask me about the possibility of going to trial I can reassure them that a positive result is worth all the effort.

For further information contact Clare Thompson on 0191 232 8345 or email:clare.thompson@hay-kilner.co.uk

Please note:
This article is not legal advice; it is intended to provide information of general interest about current legal issues. Please contact us to discuss how the contents of the article may affect you.