Legal Terms and Words
Relating to Birth Injury Cases
Initial Phase of Birth Injury Litigation Case
Admissions/partial admission
When the Defence admits to breach of duty and/or causation. They may admit to breach of duty but deny their breach caused all the damage, and admit to only partial causation ie a percentage. 100% means they admit full liability and the negligence caused their injury.
CFA (conditional fee arrangement) also known as no win, no fee.
This is an option if preferred or if LA is declined. It’s important to understand that if a CFA does not succeed with the case, LA is not likely to be granted. Therefore, it is always best to use Legal Aid whenever possible as your first option as you can try again with a different solicitor and CFA.
Claimant
This will be the child to whom the injury occurred, but as the child is underage, one of the parents (often the mother) will become ‘litigant in person,’ for the child.
Disclosure
All available records and information from the defendant are requested by the claimant, including hospital notes, scans, records, etc. They are under a duty to comply with a correctly made disclosure request.
Litigant in person/litigant friend
See above. The parent (or whoever is representing the child) will be the person to whom all correspondence is addressed and who deals with the legal team. Despite this usually being a parent, they are described as ‘an interested third party’.
Causation
The breach of duty caused the injury. This is often the most disputed aspect by the defence.
Defence/Defendant
This will usually be the hospital Trust where the birth occurred. Sometimes it could be a private Midwife.
Extensions
The defendant will usually ask for several extensions in time to respond to the letter of claim. These are usually granted. They are to look at the case, gather witness statements and commission expert witness reports of their own.
Expert Witness
An expert in one of the specialities associated with the case such as obstetrician, midwife, paediatrician, or radiologist.
Expert witness report
The report delivered by the expert witnesses once the solicitor has taken on the case.
Initial review by Solicitor
The review by a (usually senior midwife) of the statement given to the solicitor by the claimant to see if a case is possible
JSM – Joint Settlement Meeting/s
Is a meeting between the parties to try to ‘settle’ a compensation claim. Usually involving the claimant and the defence, the solicitors, Barristers and all the experts in an attempt to resolve any disputes in the evidence and reach an agreement on causation and negligence. It usually occurs towards the end of the case. In some meetings the experts exchange their reports, but it is a variable process. It is a form of mediation/Alternative Dispute Resolution (ADR). At each JSM your legal team will give you an idea of what will be occurring. They can be face to face meetings, although often via zoom, telephone conference calls etc.
Legal Aid
Payment made to the solicitor once they have presented the evidence of the initial review and any other evidence gathered. A decision to grant LA is made depending on the strength of the case and the likelihood of it succeeding. LA is granted in tranches as the case progresses. It can be withdrawn if Expert witness reports are deemed unsupportive. If this occurs there is an option to try again with a solicitor offering a CFA
Legal team/Solicitors/Barrister
This will be the firm of solicitors you choose, and a barrister of their choice who will oversee and fight the case on behalf of the Claimant.
Letter of Claim
The main letter sent to the Defendant by the Claimant’s solicitor. This letter of claim sets out the case against the Defendant. It will give all the particulars of the claim, signify when negligence took place and how this negligence caused the Claimants injury. It uses the details from your Witness Statement and evidence from the expert’s statements laid out in a timeline to support the case. It does not yet show the expert’s statements or your statement. It gives an initial period of 4 months to respond, but requires a letter acknowledging receipt within 14 days. Extensions are almost always granted to give the Defence time to put together a letter of Response.
Letter of Response
This is the reply returned to the Claimant from the Defendant, replying to the letter of claim. This response is usually very detailed and will answer all the points in the letter of claim, using their own evidence to support their statement. Sometimes they will deny everything, sometimes they will admit some degree of negligence, but deny this caused the injury, sometimes they will admit negligence and causality.
Liability/Admissions
If all the criteria for negligence is admitted then the defence have accepted liability, that is, that their actions caused all or some of the child’s injury and they are legally responsible for paying compensation. This is an agreement by both sides on whether negligence occurred and whether this negligence caused the injury. This can also involve a percentage settlement. When agreement is reached or a percentage is offered where the Defence admits partial liability and will therefore only pay this percentage of the overall compensation. The Claimant can either accept, negotiate, or reject this percentage. If rejected a Court date needs to be set for the case to be decided by a judge.
Negligence*
To have negligence admitted 3 facts must be established
- duty of care
- breach of that duty/breach of care
- damage (which is caused by the breach) and which is foreseeable.
Put simply, the person delivering the care must be qualified to do so. The standard of care fell below that which a reasonable practitioner would have given and the failure to give that standard of care resulted in harm.
Particulars of Claim
A formal document specifying the precise allegations made against the Defendant put together by the Barrister and filed with the court in readiness for a trial.
*For further information on the Chain/Principles of Negligence click on the Negligence Chain information box.
Intermediate and Final Phase of the Case
Interim/Quantum and Settlement
Case Manager*
Someone who works with the family and the Deputy to coordinate the care given to the child. They employ carers, physiotherapy, occupational therapist, and organise home adaptations etc.
Court of Protection *
The court is a legal body which oversees the Deputy and allows money awarded to the injured person to be paid out and to ensure it is not mismanaged.
Compensation Recovery Unit (CRU)*
The Compensation Recovery Unit (CRU) is a government body, with responsibility for recovering social security benefits paid to the victims of negligence who win compensation.
Deputy*
Someone who will oversee the funds awarded to the child and will liaise with the court of protection to ensure funds are handled correctly.
Expenses
Linked to Gratuitous care are Expenses incurred for your child which would not otherwise have been spent. This includes equipment bought by parents, therapies paid for by parents and any expense over and above that of an uninjured child. I’ve added a list of our own expenses as the starting point checklist. I’ve covered this in my blog area under ‘Expenses‘. As soon as possible make a list of your own expenditure and keep emails relating to the purchase or receipts. This is far easier than attempting to remember items you bought 10 years ago.
Gratuitous care
Gratuitous care is usually care given by family members, not that provided by local authority services. Once the case is settled, parents can opt to be paid on a formal basis as the child’s carer, paid from the compensation to the child. Again the ‘salary’ is at the lower rate than an agency carer, and you are not classed as an employee. You don’t pay tax or NI hence the 20% lower scale. These can also be paid in interim. Alternatively paid carers can be hired.
General damages and past loss/ Special Damages
A lump sum payment is paid to the injured child for the pain and suffering the negligence of the defendant has caused. There is a sliding scale depending on the severity. It is a one-off payment.
What are the other likely losses and expenses the injured person will now incur as a result of the injury most of which are quantified in Interim?
Common losses and expenses claimed:
• Loss of earnings
• Care and support
• Travel expenses
• Aids and Equipment
• Treatment costs (i.e. Physiotherapy, hydrotherapy, speech and language therapy)
• Accommodation
• Transport
Interim Payments
These are given when certain aspects of the case are admitted and are given for immediate care needs. The money comes out of the overall settlement, and occur while the case as a whole is being quantified.
Joint Settlement Meeting
At some point in Interim all parties may meet to discuss and decide on the compensation that has been quantified (estimated) on both sides. It is to reach agreement on what should be funded and what is objected to. Usually the Claimant’s estimates are higher than the Defences’ so its simply a case of reaching a concensus. However, if costs cannot be agreed the case may go to court for a judge to decide what are fair costs for the injured party. Usually a JSM can find common ground though.
Judgement
If the Defence admit liability at any time, a judgement must be entered at the High Court as an affirmation of this admission. Your solicitor will do this.
A judgement can be made following a Trial if the two sides cannot reach agreement during mediation at a joint settlement meeting (JSM). There is no jury but a High Court judge will decide based on the evidence, and on the balance of probabilities.
Past Care
The payment made to parents following admission and settlement of the case for the care of the injured child. Again, it is care over and above the care given to an uninjured child, and is likened to the salary (minus tax and NI) that would need to be paid to carers. It will include, time taken with physical care of the child, transportation to school, hospital appointments and hospital stays (where you need to provide care with feeding, changing etc). The care costs are calculated at around 75-80% of those of a paid carer/employee as tax and NI plus transport to work, do not need to be included. This is not an extensive list and can include many other areas. They are paid once settlement is reached, although some parents have had partial payments made once admission of liability is given. It is a lump sum payment given to parents, and is not subject to income tax.
Quantum/Interim
A period where the full needs of the child are quantified so that compensation can be given for life. If a Percentage has been agreed then the sums agreed will be a percentage of the sums arrived at during quantum.
Settlement
In law, a settlement is a resolution between disputing parties about a legal case reached either before or after court action begins. In Birth Injury cases a settlement is reached after the case has been ‘quantified’ during the period known as Interim. Settlement is reached at the end of the case and is in two parts. A lump sum to cover housing, health care and various other needs of the injured child, and annual or periodical payments to cover all care costs for life regardless of life expectancy.
Stay
A halt to the final settlement because the child may be quite young and their care needs may not be fully known. Interim payments will be made plus other purchases, such as the housing if this is necessary.
Split Trial
Sometimes for multiple reasons a split trial is asked for. This is usually to have one trial for liability and a second one to quantify the claim, but there can be other reasons. If liability is admitted at the first trial it’s usually possible to quantify the claim via mediation and avoid the second trial.
Trial
If all efforts to reach an out of court settlement fail, your legal team will apply to the High Court for a trial date to be set. It is rare for cases to go to trial as the loser will usually pay the costs of the Claimant, and it can be extremely expensive. Most cases are settled before trial, and it’s common for an agreement to be reached shortly before trial. At trial the judge will decide on liability (whether the Defendants action or inaction caused the injury) plus quantification of the claim (how much compensation is awarded). This is why your solicitor will obtain legal aid to quantify the case beforehand.
* More information on these subjects in the Legal Agencies and Interim section
