Navigating the litigation process is no easy feat – pre-action steps, starting court proceedings and the possibility of trial can feel overwhelming as a client.
In addition to this, clinical negligence claims can take many years to reach a conclusion and are likely to be playing out alongside having to manage a new and challenging personal situation.
These are some of the many reasons why trying to settle your claim early may be appealing and the rules that govern the process of a clinical negligence claim (the Civil Procedure Rules (“CPR”) aim to help achieve this – to resolve disputes early and out of court, before a claim is issued.
Why you might want to settle a medical negligence claim early
Settling early can avoid stress for you and can also mean that you get access to much needed funds sooner. But why would a Defendant be keen to settle?
Settling early can save the Defendant significant legal costs, as well as resources and time. NHS Resolution, the organisation that handles negligence claims for the NHS trusts in England, provide expertise on “resolving concerns and disputes fairly, sharing learning for improvement and preserving resources for patient care.”
How can you achieve early settlement of a claim?
Making an early offer is the way we try and encourage early settlement from the defendant.
Offers to settle a claim
There are two main types of offers that are used to try and settle claims:
- Part 36 offers
Part 36 of the CPR sets out a code for making a specific type of offer to achieve this – a “Part 36 offer”. If a Part 36 offer is made by a Claimant (the person bringing the claim) and the other side fails to beat this offer at trial (meaning that the claim settles for an amount more than the Part 36 offer), they will usually suffer financial penalties – such as paying additional costs, interest on those costs, and even an uplift on damages.
It is important to note that this goes both ways though, so if the Defendant makes a Part 36 offer which you fail to beat, you could face financial penalties.
A Part 36 offer can result in specific and severe sanctions for the other side, forcing them to take it seriously for fear of the repercussions if a claim ends up at trial. However, they are inflexible and must be made in accordance with the CPR.
- Calderbank offers
Alternatively, your solicitor might suggest making a “Calderbank offer”, which is an informal type of settlement offer. Unlike a Part 36 offer, the Court can use its discretion to decide how much weight to give to a Calderbank offer (which could be none at all).
A Calderbank offer provides more flexibility than a Part 36 offer, allowing the offeror to draft it on their own terms (for example, time limit, payment terms, requirement for an apology and so on), so it can be tailored to your specific requirements.
However, a Calderbank offer carries less consequences for the other side than a Part 36 offer, and it needs only be ‘considered’ by the Court – there is no obligation for it to influence the Court’s decision as to costs.
An approach guided by experience
An experienced solicitor may suggest making a ‘Calderbank’ offer in tandem with a Part 36 offer.
For example, making a higher Part 36 offer, with a lower, but time-limited, Calderbank offer.
The aim of this approach is to encourage the other side to settle quickly, for a slightly lower sum, allowing you to move on and put things behind you. If the Defendant does not accept the Calderbank offer, it will automatically expire. The Part 36 offer will then remain open and act as a backstop, to protect your position.
Alternative Dispute Resolution (ADR)
Another method for encouraging early settlement is through ADR, (for example via a ‘Joint Settlement Meeting’ or mediation). Both involve engaging in discussions with the other side (indirectly, either through a mediator or Counsel (barristers) to negotiate and reach a settlement figure that is satisfactory to both parties.
Again, this saves time and money for both sides and what is more, if proceedings are issued, parties may be required by the court to provide evidence that ADR has been considered – refusal to participate in ADR may be deemed unreasonable and could result in additional court costs.
Are you considering a medical negligence claim?
At Davies and Partners, our team of expert clinical/medical negligence lawyers are here to hold your hand throughout the litigation process; providing clear advice and support every step of the way – including how to best approach settlement negotiations.
Whether you’re considering a claim, or already involved in litigation, we can help you assess the most effective way to resolve your case – and ensure you’re protected, whatever the outcome.
Please contact us now to arrange a free consultation.