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A typical dental negligence claim
My overall goal is to negotiate an out of Court settlement of your claim. After all, nobody really wants to fight their case in a Courtroom of this can be avoided. Most good strong personal injury and clinical negligence claims (which include dental claims) will therefore be settled before Court proceedings have to be issued. There is always of course the exception to every rule!
On being contacted, I will speak to you over the telephone and assess the basics of your claim with you, limitation, breach of duty, causation and injury, to see If your dental case is strong enough to be accepted by me. If strong enough, further detail will be obtained from you, such as our personal details, details of the dentists in question, a detailed description of the clinical events and alike. If strong enough, your case will be run under a Law Society approved CFA (conditional fee agreement) often called a "no win no fee" agreement.
After the CFA has been signed, then one of the first jobs that I shall undertake is a full assessment of your dental claim. This is to assess the strength of your own case, and that of the dentist accused of negligence. This will involve me obtaining your clinical records and x-rays from the dentist accused of negligence, and also any subsequent treating dentists that you may have attended. This is so that I can get all of the facts surrounding your case, rather like building up a jigsaw puzzle, one the pieces of the puzzle have been obtained, then the picture of your treatment will slowly form. Once your dental case has been assessed, and I am confident that all relevant documents have been found, depending upon the type of your case, I shall obtain evidence of brief report from a dental expert, and shall write a “letter of claim” to the dentist accused of the negligence. This letter of claim is required to be written by me under the court rules, and outlines the damage that you have suffered, and the reasons why we feel that that your particular dentist has been negligent in his/her treatment of you.
It is at this stage that the dentist will usually instruct his/her defence organisation to represent him. It is a requirement that dentists carry compulsory insurance in order to practice, and these insurers, better known as defence organisations become involved at an early stage. The three main defence organisations are Dental Protection, The Dental Defence Union and The Medical Dental Defence Union of Scotland.
The dentist (or his/her defence organisation) then has 3 months in which to investigate your dental negligence claim and provide a "letter of response" in accordance with the court rules. This letter of response must either admit your claim, (or parts of it), or deny your claim (or parts of it) giving specific reasons for the denial. It is at this stage of the negotiations that if an out of court settlement cannot be reached, then I shall consider issuing court proceedings, and advise you of the best way to proceed in your dental claim.
Overview of Initial Claims Procedure
1. Initial instructions taken;
2. Case Assessed for strengths and weaknesses;
3. No Win -No Fee agreement signed;
4. Gathering of dental records undertaken;
5. Experts report obtained;
6. Letter of claim drafted;
7. Settlement of claim or Issue of Court proceedings
Overview of Court Proceedings
It is important to note that the majority of dental claims will settle before we have to issue Court proceedings, but if you have a good strong dental claim, and the dentist still denies liability, then Court proceedings may by your only option if you wish to move forward with your claim.
Commencement of proceedings It is my policy to commence proceedings as soon as possible within the 3-year limitation period. In a claim for personal injury you are obliged to file a medical report at court, before the Court will issue the proceedings. If you start the proceedings, you are called the “Claimant”, and your opponent the “Defendant”. If your claim is valued at less than £50,000 it will usually be commenced in the County Court by issuing a Claim Form. Claims worth in excess of £50,000 tend to be brought in the High Court.
It is necessary to set out the basic facts about your claim in a formal document called the Particulars of Claim. This is usually served at the same time as the Claim Form. The particulars will be drafted by a Barrister and approved by myself. Statements of truth The Court rules require that the following documents that have been prepared by you or on your behalf are formally verified by a “statement of truth”:
The initial Claim form
The particulars of claim or defence
Your Witness Statement
Application Notice
It is important that you are satisfied that these documents contain a full and accurate statement of your case, since any subsequent changes are likely
to affect your credibility as a witness. Accordingly I will ask you to check these documents very carefully before they are filed at court or served on your opponent. Any intentional inaccuracy is likely to leave you exposed to a court fine or even a term of imprisonment.
Service of proceedings
I will advise you when the proceedings have been served on the Defendant (your opponent) and when I expect to receive the Defence (usually within 14 days of service). Sometimes the Defendant will ask for more time, and can obtain an additional 14 days as of right by filing an acknowledgement of service form. The Defence is the Defendant’s formal response to your claim. Once this is received I will forward it to you and advise you accordingly. If liability is admitted If the Defendant admits blame for the accident or fails to file a Defence in time I can apply for an interlocutory or a default judgment; this settles the issue of liability. The amount of your entitlement to compensation is left to be decided either by the court or by negotiation with the Defendant. If liability is disputed If the Defendant denies liability and sets out an arguable case in the Defence, then the Court will send out an allocation questionnaire to all the parties. This form is intended to assist the court decide how to deal with the case. I am required to complete and return your questionnaire together with a court fee to the Court within 14 days. Any delay is likely to result in a court penalty. It is also open to us to ask for further information or clarification of the Defence, if necessary.
Directions On returning the allocation questionnaire form, either party can ask for any specific directions they need, including a stay of the proceedings for up to one month, to try to settle the claim. The court can, of its own initiative, grant time for the parties to mediate or undergo alternative dispute resolution procedures if there is a chance that the parties can settle their differences amicably. The court will then decide how to allocate the claim within one of the three different procedural tracks: small claims, fast-track claims or multi-track claims
Your claim will be allocated to the Multi Track as it is classed as a complex dental claim. Allocation of claimsThis procedure enables the court to apply the overriding objectives of the CPR, which includes managing claims in a way that is proportionate to its value and complexity and applying the other principles set out under the court rules.Minor injury claims will be dealt with informally and expeditiously within the small claims track. Usually, this involves the court issuing simple directions for disclosure of documents and evidence and later setting an early hearing date. The Court can give notice of its intention to deal with the claim without anyone attending a hearing, with the parties’ consent. Only minimal solicitor’s costs are awarded under this system. Most personal injury claims over £1,000 in value will be allocated to the fast track. If this procedure is selected, the Court will then issue directions for the future management of your claim after considering what the parties have stated in their allocation questionnaires, with a timetable for each step clearly set out.
In a typical case, these steps are likely to include matters such as disclosure, exchange of witness statement and exchange of experts reports. The court timetable must be strictly adhered to; failure to do so is likely to incur financial and other penalties. Only in exceptional cases will the court allow expert witnesses to give evidence in court. Instead the court will encourage the use of jointly instructed single experts, who will report to the court and whose reports will be read out at the hearing.
A fast-track hearing is given a maximum of one day for the hearing, often much less time. The court will encourage the parties to focus on the issues in dispute and to limit the evidence before the court where possible to simplify and accelerate the management of the case.
In more complicated claims, for example where several experts are likely to be required or where the value of the claim is likely to exceed £15,000, the Court will probably allocate your claim to the multi-track procedure. This track provides for a more flexible approach to the management of the case by the Court. The Court will usually issue directions immediately, directions are made by the Judge to guide the parties in the claim. The directions stage is usually drafted by me and agreed with the other side, this is akin to agreeing a timetable for the court proceedings. In most cases the court will then fix a case management conference or pre trial review appointment, to help the parties and the court decide on the most appropriate means preparing the case for trial. The Court will probably require me to attend a case management conference and/or a pre trial review. The parties will still be encouraged to try to settle their differences. If this is not possible the court will try to list the claim for a final hearing within a year of commencement of the proceedings.Continuing negotiations. I will review the merits and value of your claim as your claim progresses and further evidence is gathered and exchanged. I shall continue our dialogue with the opponent and try to settle the claim without the need to trouble you with a Court appearance. The majority of claims settle without proceeding to a hearing. Defendant insurers often like to make a Part 36 payment into Court after exchange of expert evidence. The payment is intended to reflect the value that they put on your claim and this has important cost consequences that I will advise you about, as and when this occurs. Part 36 offers to settle and payments.
This important topic is too detailed to be explained here , but It is sufficient to mention here that it is open to a defendant to put you at risk as to the costs, once proceedings have started, by paying into court such sum as is believed to be sufficient to compensate you. If you reject the payment and proceed to a hearing the judge will not know about the payment. If you fail to beat the payment at trial or obtain a less advantageous award, then you will be ordered to pay the defendant’s costs from the latest date when you could have accepted the payment, unless the court considers this to be unjust.
Preparation and listing for trial.
If it is not possible to settle your claim without proceeding to a hearing then I will contact you and any other witnesses (including any experts whose attendance at court is required) before applying to the Court for a hearing date. I will wish to find out which dates are inconvenient. Because a substantial proportion of your legal costs will be incurred in the final preparations for and in attending the trial itself, we will carry out a further review of the evidence and merits and review the value of your claim at this stage. If your claim is allocated to the fast track, the court will take the initiative by sending out a listing questionnaire to the parties.
The hearing
I will arrange for you to be represented at the hearing by a Barrister. The Court will consider the evidence and reach a decision on liability, if appropriate, and on the value of your claim. If you are successful, the Court will assess the value of your claim and include this in the judgment. The usual rule is that the loser pays the winning party’s costs. In a fast-track case, the hearing is restricted to a maximum length of one day .Interim payments It is possible to obtain a payment on account of your claim from an opponent or his insurers on a voluntary basis, even before proceedings have been commenced. Defendant insurers commonly agree to pay something on account in a claim where liability is not in dispute. It is also possible to apply to the Court for an interim payment, after proceedings have commenced. Where liability is disputed, it is necessary to persuade the Court that your claim is very likely to succeed and that you will be entitled to substantial damages against the Defendant. An interim payment application, if disputed, can often amount to a mini trial of the case. If the application succeeds then the costs of the application are potentially recoverable from the Defendant. It should be appreciated that this kind of application can increase the costs of a claim significantly.
It may be possible to advance a substantial proportion of the judgment moneys, once received, provided sufficient moneys are retained to cover any possible shortfall. Time scales, generally Because of the strict time limits imposed by the Court, it is important that most of our enquiries and preparations are undertaken prior to starting proceedings. This will reduce the risk that part or all of your claim will not be disallowed due to a failure to adhere to the automatic directions. Your co-operationI depend upon your full co-operation and complete instructions to progress your claim effectively. I enclose below a brief overview of a typical dental negligence claim:
OVERVIEW PRE COURT PROCEEDINGS
▼Letter of claim
▼Letter of response (usually a denial of liability received)
▼Negotiations (usually failed by now)
▼Preparation of medical report by a suitably qualified dental expert
▼Preparation of Court documents (claim form, particulars of claim, schedule of loss, medical report on condition and prognosis)
▼ISSUE OF COURT PROCEEDINGS
▼All Court documents sent to Court and the Defendant
▼Defence filed by the Defendant
▼Allocation questionnaire sent by the Court to be completed
▼Case allocated to the Multi-Track due to complex dental negligence issues
▼Directions timetable (agreed with the Defendant)
▼Disclosure of all relevant documents
▼Exhange of all Witness Statements
▼Exchange of expert evidence (liability & causation reports only)
▼Experts Meeting if issues are still disputed
▼Listing questionnaire sent to the Court to provide details of dates for trial
▼Updated schedule of loss sent to the Court
▼Trial bundles prepared
▼TRIAL
Assessement of Costs
My overall goal is to negotiate an out of Court settlement of your claim. After all, nobody really wants to fight their case in a Courtroom of this can be avoided. Most good strong personal injury and clinical negligence claims (which include dental claims) will therefore be settled before Court proceedings have to be issued. There is always of course the exception to every rule!
On being contacted, I will speak to you over the telephone and assess the basics of your claim with you, limitation, breach of duty, causation and injury, to see If your dental case is strong enough to be accepted by me. If strong enough, further detail will be obtained from you, such as our personal details, details of the dentists in question, a detailed description of the clinical events and alike. If strong enough, your case will be run under a Law Society approved CFA (conditional fee agreement) often called a "no win no fee" agreement.
After the CFA has been signed, then one of the first jobs that I shall undertake is a full assessment of your dental claim. This is to assess the strength of your own case, and that of the dentist accused of negligence. This will involve me obtaining your clinical records and x-rays from the dentist accused of negligence, and also any subsequent treating dentists that you may have attended. This is so that I can get all of the facts surrounding your case, rather like building up a jigsaw puzzle, one the pieces of the puzzle have been obtained, then the picture of your treatment will slowly form. Once your dental case has been assessed, and I am confident that all relevant documents have been found, depending upon the type of your case, I shall obtain evidence of brief report from a dental expert, and shall write a “letter of claim” to the dentist accused of the negligence. This letter of claim is required to be written by me under the court rules, and outlines the damage that you have suffered, and the reasons why we feel that that your particular dentist has been negligent in his/her treatment of you.
It is at this stage that the dentist will usually instruct his/her defence organisation to represent him. It is a requirement that dentists carry compulsory insurance in order to practice, and these insurers, better known as defence organisations become involved at an early stage. The three main defence organisations are Dental Protection, The Dental Defence Union and The Medical Dental Defence Union of Scotland.
The dentist (or his/her defence organisation) then has 3 months in which to investigate your dental negligence claim and provide a "letter of response" in accordance with the court rules. This letter of response must either admit your claim, (or parts of it), or deny your claim (or parts of it) giving specific reasons for the denial. It is at this stage of the negotiations that if an out of court settlement cannot be reached, then I shall consider issuing court proceedings, and advise you of the best way to proceed in your dental claim.
Overview of Initial Claims Procedure
1. Initial instructions taken;
2. Case Assessed for strengths and weaknesses;
3. No Win -No Fee agreement signed;
4. Gathering of dental records undertaken;
5. Experts report obtained;
6. Letter of claim drafted;
7. Settlement of claim or Issue of Court proceedings
Overview of Court Proceedings
It is important to note that the majority of dental claims will settle before we have to issue Court proceedings, but if you have a good strong dental claim, and the dentist still denies liability, then Court proceedings may by your only option if you wish to move forward with your claim.
Commencement of proceedings It is my policy to commence proceedings as soon as possible within the 3-year limitation period. In a claim for personal injury you are obliged to file a medical report at court, before the Court will issue the proceedings. If you start the proceedings, you are called the “Claimant”, and your opponent the “Defendant”. If your claim is valued at less than £50,000 it will usually be commenced in the County Court by issuing a Claim Form. Claims worth in excess of £50,000 tend to be brought in the High Court.
It is necessary to set out the basic facts about your claim in a formal document called the Particulars of Claim. This is usually served at the same time as the Claim Form. The particulars will be drafted by a Barrister and approved by myself. Statements of truth The Court rules require that the following documents that have been prepared by you or on your behalf are formally verified by a “statement of truth”:
The initial Claim form
The particulars of claim or defence
Your Witness Statement
Application Notice
It is important that you are satisfied that these documents contain a full and accurate statement of your case, since any subsequent changes are likely
to affect your credibility as a witness. Accordingly I will ask you to check these documents very carefully before they are filed at court or served on your opponent. Any intentional inaccuracy is likely to leave you exposed to a court fine or even a term of imprisonment.
Service of proceedings
I will advise you when the proceedings have been served on the Defendant (your opponent) and when I expect to receive the Defence (usually within 14 days of service). Sometimes the Defendant will ask for more time, and can obtain an additional 14 days as of right by filing an acknowledgement of service form. The Defence is the Defendant’s formal response to your claim. Once this is received I will forward it to you and advise you accordingly. If liability is admitted If the Defendant admits blame for the accident or fails to file a Defence in time I can apply for an interlocutory or a default judgment; this settles the issue of liability. The amount of your entitlement to compensation is left to be decided either by the court or by negotiation with the Defendant. If liability is disputed If the Defendant denies liability and sets out an arguable case in the Defence, then the Court will send out an allocation questionnaire to all the parties. This form is intended to assist the court decide how to deal with the case. I am required to complete and return your questionnaire together with a court fee to the Court within 14 days. Any delay is likely to result in a court penalty. It is also open to us to ask for further information or clarification of the Defence, if necessary.
Directions On returning the allocation questionnaire form, either party can ask for any specific directions they need, including a stay of the proceedings for up to one month, to try to settle the claim. The court can, of its own initiative, grant time for the parties to mediate or undergo alternative dispute resolution procedures if there is a chance that the parties can settle their differences amicably. The court will then decide how to allocate the claim within one of the three different procedural tracks: small claims, fast-track claims or multi-track claims
Your claim will be allocated to the Multi Track as it is classed as a complex dental claim. Allocation of claimsThis procedure enables the court to apply the overriding objectives of the CPR, which includes managing claims in a way that is proportionate to its value and complexity and applying the other principles set out under the court rules.Minor injury claims will be dealt with informally and expeditiously within the small claims track. Usually, this involves the court issuing simple directions for disclosure of documents and evidence and later setting an early hearing date. The Court can give notice of its intention to deal with the claim without anyone attending a hearing, with the parties’ consent. Only minimal solicitor’s costs are awarded under this system. Most personal injury claims over £1,000 in value will be allocated to the fast track. If this procedure is selected, the Court will then issue directions for the future management of your claim after considering what the parties have stated in their allocation questionnaires, with a timetable for each step clearly set out.
In a typical case, these steps are likely to include matters such as disclosure, exchange of witness statement and exchange of experts reports. The court timetable must be strictly adhered to; failure to do so is likely to incur financial and other penalties. Only in exceptional cases will the court allow expert witnesses to give evidence in court. Instead the court will encourage the use of jointly instructed single experts, who will report to the court and whose reports will be read out at the hearing.
A fast-track hearing is given a maximum of one day for the hearing, often much less time. The court will encourage the parties to focus on the issues in dispute and to limit the evidence before the court where possible to simplify and accelerate the management of the case.
In more complicated claims, for example where several experts are likely to be required or where the value of the claim is likely to exceed £15,000, the Court will probably allocate your claim to the multi-track procedure. This track provides for a more flexible approach to the management of the case by the Court. The Court will usually issue directions immediately, directions are made by the Judge to guide the parties in the claim. The directions stage is usually drafted by me and agreed with the other side, this is akin to agreeing a timetable for the court proceedings. In most cases the court will then fix a case management conference or pre trial review appointment, to help the parties and the court decide on the most appropriate means preparing the case for trial. The Court will probably require me to attend a case management conference and/or a pre trial review. The parties will still be encouraged to try to settle their differences. If this is not possible the court will try to list the claim for a final hearing within a year of commencement of the proceedings.Continuing negotiations. I will review the merits and value of your claim as your claim progresses and further evidence is gathered and exchanged. I shall continue our dialogue with the opponent and try to settle the claim without the need to trouble you with a Court appearance. The majority of claims settle without proceeding to a hearing. Defendant insurers often like to make a Part 36 payment into Court after exchange of expert evidence. The payment is intended to reflect the value that they put on your claim and this has important cost consequences that I will advise you about, as and when this occurs. Part 36 offers to settle and payments.
This important topic is too detailed to be explained here , but It is sufficient to mention here that it is open to a defendant to put you at risk as to the costs, once proceedings have started, by paying into court such sum as is believed to be sufficient to compensate you. If you reject the payment and proceed to a hearing the judge will not know about the payment. If you fail to beat the payment at trial or obtain a less advantageous award, then you will be ordered to pay the defendant’s costs from the latest date when you could have accepted the payment, unless the court considers this to be unjust.
Preparation and listing for trial.
If it is not possible to settle your claim without proceeding to a hearing then I will contact you and any other witnesses (including any experts whose attendance at court is required) before applying to the Court for a hearing date. I will wish to find out which dates are inconvenient. Because a substantial proportion of your legal costs will be incurred in the final preparations for and in attending the trial itself, we will carry out a further review of the evidence and merits and review the value of your claim at this stage. If your claim is allocated to the fast track, the court will take the initiative by sending out a listing questionnaire to the parties.
The hearing
I will arrange for you to be represented at the hearing by a Barrister. The Court will consider the evidence and reach a decision on liability, if appropriate, and on the value of your claim. If you are successful, the Court will assess the value of your claim and include this in the judgment. The usual rule is that the loser pays the winning party’s costs. In a fast-track case, the hearing is restricted to a maximum length of one day .Interim payments It is possible to obtain a payment on account of your claim from an opponent or his insurers on a voluntary basis, even before proceedings have been commenced. Defendant insurers commonly agree to pay something on account in a claim where liability is not in dispute. It is also possible to apply to the Court for an interim payment, after proceedings have commenced. Where liability is disputed, it is necessary to persuade the Court that your claim is very likely to succeed and that you will be entitled to substantial damages against the Defendant. An interim payment application, if disputed, can often amount to a mini trial of the case. If the application succeeds then the costs of the application are potentially recoverable from the Defendant. It should be appreciated that this kind of application can increase the costs of a claim significantly.
It may be possible to advance a substantial proportion of the judgment moneys, once received, provided sufficient moneys are retained to cover any possible shortfall. Time scales, generally Because of the strict time limits imposed by the Court, it is important that most of our enquiries and preparations are undertaken prior to starting proceedings. This will reduce the risk that part or all of your claim will not be disallowed due to a failure to adhere to the automatic directions. Your co-operationI depend upon your full co-operation and complete instructions to progress your claim effectively. I enclose below a brief overview of a typical dental negligence claim:
OVERVIEW PRE COURT PROCEEDINGS
▼Letter of claim
▼Letter of response (usually a denial of liability received)
▼Negotiations (usually failed by now)
▼Preparation of medical report by a suitably qualified dental expert
▼Preparation of Court documents (claim form, particulars of claim, schedule of loss, medical report on condition and prognosis)
▼ISSUE OF COURT PROCEEDINGS
▼All Court documents sent to Court and the Defendant
▼Defence filed by the Defendant
▼Allocation questionnaire sent by the Court to be completed
▼Case allocated to the Multi-Track due to complex dental negligence issues
▼Directions timetable (agreed with the Defendant)
▼Disclosure of all relevant documents
▼Exhange of all Witness Statements
▼Exchange of expert evidence (liability & causation reports only)
▼Experts Meeting if issues are still disputed
▼Listing questionnaire sent to the Court to provide details of dates for trial
▼Updated schedule of loss sent to the Court
▼Trial bundles prepared
▼TRIAL
Assessement of Costs
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PI+ Solicitors is a specialist firm dealing only in dental negligence claims against dentists and
is regulated by The Law Society
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