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When Other Attempts Have Failed

If all attempts to settle the claim without litigation have failed, your solicitor will commence court proceedings.

The proceedings will take place in either the High Court or County Court, with difficult or high value cases generally being assigned to the former.

Before court action commences both parties are required to comply with the Clinical Negligence Pre-action Protocol.

Court forms

Court proceedings begin when your solicitor issues a claims form and then serves it on the defendant. The claims form may include details of your claim. If not these can be served separately. Thereafter the defence will invoke their solicitor who may attempt to slow things down to give themselves ample time to look in to the case and put together a compelling defence argument.

The claims form includes particulars of claim, supported by a statement of truth. The particulars of claim include:

  • a declaration of the duty of care owed to you
  • relevant information regarding your medical treatment
  • details of the alleged negligence
  • an assertion that a breach of duty of care resulted in your damages and losses
  • a claim for damages and interest.

The defendant has a certain amount of time in which to serve a defence, depending on which type of court the proceedings are taking place in. This is 14 days for a county court and 28 days for High Court. If the a defence is not served within the stipulated time limit then a judgement in default can be applied for by your solicitor.

The defence is likely to either refute the claims of negligence or argue that the negligence was not the cause of your loss.

Case management

Once court forms have been exchanged the case will be managed by the courts. Your solicitor should apply to the court for instructions on how the case should proceed up until the trial. Things that can be prescribed are exchanging of additional information and documents by both parties, exchange of witness statements, meetings between medical experts and the actual date of the trial.

The court has a responsibility to ensure that the trial transpires fairly, that is that there is a level financial playing field. It is also duty-bound to ensure that any funds spent on the case are justifiable by the size, importance and complexity of the case as well as the financial situation of each party.


The court may also order mediation.