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Dental Solicitors UK - Specialist Solicitors In Dental Negligence Claims & Dental Law
Dental Claims Procedure
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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 therfore 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”:
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The initial Claim form
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The particulars of claim or defence
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Your Witness Statement
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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.
This 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:
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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.
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.
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 .
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.
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.
I 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
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Letter
of claim
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Letter
of response (usually a denial of liability received)
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Negotiations
(usually failed by now)
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Preparation
of medical report by a suitably qualified dental expert
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Preparation
of Court documents (claim form, particulars of claim, schedule of loss, medical report on condition and prognosis)
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ISSUE OF
COURT PROCEEDINGS
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All Court
documents sent to Court and the Defendant
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Defence
filed by the Defendant
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Allocation
questionnaire sent by the Court to be completed
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Case allocated
to the Multi-Track due to complex dental negligence issues
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Directions
timetable (agreed with the Defendant)
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Disclosure
of all relevant documents
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Exhange
of all Witness Statements
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Exchange
of expert evidence (liability & causation reports only)
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Experts
Meeting if issues are still disputed
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Listing
questionnaire sent to the Court to provide details of dates for trial
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Updated
schedule of loss sent to the Court
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Trial bundles
prepared
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TRIAL
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Assessment
of costs & Compensation awarded
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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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