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
The process by which the parties identify and provide documents and other evidence that are relevant to the case. In a clinical negligence claim this can include hospital records, scans, reports and other relevant documentation. The rules governing disclosure are more complicated than simply requesting the records, and your solicitor will deal with this.
Litigant friend
A person appointed to conduct legal proceedings on behalf of a child who cannot conduct proceedings themselves. This is often a parent. The litigation friend works with the legal team and makes decisions in the child’s best interests.
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
An initial assessment of the information available, including your statement and medical records where available, to establish whether there appears to be a viable clinical negligence claim. The solicitor may also seek an initial medical opinion.
JSM – Joint Settlement Meeting/s – prior to admissions this JSM may decide on liability.
A meeting between the parties, usually involving their legal representatives and sometimes experts and/or the claimant, to see whether some or all of the issues in dispute can be resolved without going to trial. Depending on the stage of the case, this may involve liability, causation and/or the amount of compensation. JSMs can be held in person or remotely by Zoom or Teams.
Legal Aid
Public funding which may be available for certain clinical negligence claims, subject to the relevant scope, merits and financial eligibility rules. Your solicitor will assess whether the case is eligible and will deal with the application. Funding may need to be extended or amended as the case progresses.
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. Often 12+ months.
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)
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 setting out the allegations made against the Defendant and the basis of the claim. It is a court document and forms part of the formal proceedings.
*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 *
A specialist court which makes decisions and orders concerning the property, financial affairs and, in some circumstances, welfare of people who lack mental capacity to make those decisions themselves. Where a child lacks capacity and receives a substantial compensation award, the Court of Protection may become involved in managing the award
Compensation Recovery Unit (CRU)*
The Compensation Recovery Unit (CRU) is a government body, with responsibility for recovering social security benefits paid to people who receive compensation.
Deputy*
A person appointed by the Court of Protection to make decisions on behalf of someone who lacks the capacity to make those decisions themselves, within the authority given by the court.
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.
Expert Witnesses
These are professionals who usually visit you to assess aspects of the care the child has had and will need in the future. Examples are Care Expert, Housing Expert, Physiotherapist, Occupational Therapist plus many many more. For more information see my section on Interim.
Gratuitous care
Care provided by family members or others without payment, rather than by professional carers. In an appropriate case, the value of this care may form part of the compensation claim. Your legal team will assess the amount of care provided and how it should be valued. Once the case is settled, parents can opt to be paid as the child’s carer, paid from the compensation to the child. Generally speaking this is at the lower rate than an agency carer, and you are not classed as an employee. You don’t pay tax or NI which may reduce the amount by 20%. These can also be paid in interim.
General damages
A lump sum intended to compensate the injured person for pain, suffering and loss of amenity resulting from the injury. The amount depends on the nature and severity of the injury and other relevant circumstances. There is a sliding scale depending on the severity. It is a one-off payment.
Past losses/ Special Damages
These are financial losses and expenses resulting from the injury which have already been incurred. In a birth injury claim these might include care, travel, equipment, treatment, equipment, accommodation and other additional expenses.
Interim Payments
Payments made before the claim has reached final settlement, where the legal requirements for an interim payment have been met. These can help meet immediate needs while the full value of the claim is being assessed. Any interim payments are normally taken into account when the final compensation is calculated.
Joint Settlement Meeting
At some point in Interim all parties 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 consensus. However, if costs cannot be agreed the case may go to court for a judge to decide fair compensation 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
The process of calculating the financial value of the claim, including the child’s past and future needs, care, accommodation, equipment, therapies and other losses. If a Percentage has been agreed then the sums agreed will be a percentage of the sums arrived at during quantum.
Interim is loosely used interchangeably with quantum, but Interim is simply the time between admissions and settlement, and where Interim Payments can be made.
Settlement
A settlement is an agreement between the parties which brings the dispute, or part of it, to an end without the court having to decide the disputed issues at trial. In a birth injury case, compensation may be paid as a lump sum, by periodical payments, or through a combination of both, depending on the circumstances.
Stay
A temporary halt to court proceedings, or to a particular part of them. In a birth injury claim, a stay may sometimes be requested where it is considered appropriate to delay final resolution while further information about the child’s needs becomes available. Interim payments will be made and an assessment of housing and therapy needs.
Split Trial
A trial divided into separate stages, usually so that liability and/or causation can be decided separately from the amount of compensation (quantum). The court decides whether a split trial is appropriate. 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 the parties cannot reach agreement, the case may proceed to trial. Birth injury clinical negligence claims are normally heard by a judge rather than a jury. The judge considers the evidence and decides the disputed issues, such as breach of duty, causation and/or quantum, depending on what remains unresolved. Most cases settle before reaching a full trial. Trials are time consuming and expensive so it is very rare a case goes to trial.
* More information on these subjects in the Legal Agencies and Interim section
Sources: GOV.UK, Ministry of Justice, Civil Procedure Rules, Judiciary
