By the time a person comes to speak to a solicitor about making a compensation claim following spinal cord injury they will already have been assisted by a range of clinicians, therapists and others in the medical setting, but there are also likely to be a considerable number of people who are likely to be involved in the compensation claim. This blog is intended as a general introduction to who might be encountered.
While to the medics you will of course be the patient, to the lawyers you will be a client and the Claimant. (Where the Claimant is unable to bring legal proceedings because of incapacity others may step in to help – for example if they are a minor their claim may be pursued on their behalf by a Litigation Friend or where they do not have capacity - as defined by the Mental Health Act - by a Deputy appointed by the Court of Protection or Office of the Public Guardian).
The main point of contact a Claimant will have when instructing Brethertons – the person who will orchestrate all that needs to happen in the litigation through which your claim will be pursued - will be your solicitor. Lawyers are the range of legal professionals who study or practice the law. There are several different categories of lawyer found working in most ‘firms’ of solicitors. Solicitors are supported in their work by other lawyers and administrative staff. They will also work in hierarchies with their firms where the trainee solicitor may have spent time as a paralegal, and then becomes an assistant solicitor, an associate, a senior associate and then a partner. Typically, firms or solicitors are built around partners owning the business that is the firm.
At some point the solicitor will engage the services of a barrister. Barristers are often referred to by the lawyers as Counsel - Junior or Leading Counsel or both could be involved in your spinal cord injury claim. Barristers are lawyers who specialise in advocacy – that is the presentation of your case at Trial. In a spinal cord injury case their engagement from quite an early stage long before Trial is important. Ultimately, they will advocate your case before the Trial Judge at the Trial which determines whether the case will be successful or not, input in to the strategy and progression of the case is important. The solicitor instructs the barrister on the client’s behalf. Barristers are self-employed but tend to work in groups or ‘sets’ in ‘chambers’, supported by ‘clerks’.
The opponent in the claim is typically referred to as the Defendant. Usually while the claim is brought against the Defendant themselves, they are likely to be represented by their insurance company and their insurance company will appoint their own solicitor and barrister as matter progress. Though the person or organisation that is the Defendant will be named in the proceedings and will participate at least to some extent behind the scenes and at any trial, the case is essentially conducted on their behalf in their name and their personal involvement tends to be limited.
As to the Court (if matters get that far), your legal team will engage with Masters who manage the case once proceedings are issued and served. They will set the directions and attend to matters that enable the case to get to Trial. The Trial will be heard by the Trial Judge who will exercise their judgment on the issues before them and decide the case. Given their value and complexity, spinal cord injuries cases are heard in the High Court (and specifically the Queen’s Bench Division of the High Court). Lower value claims are litigated in the County Court.
At the end of a successful case, unless the Defendant pays all of your legal costs in full, matters are likely to be passed to a Costs Judge who will direct matters to a detailed assessment hearing at which the amount the Defendant will pay is determined if not agreed sooner. Specialist Costs Lawyers are likely to be brought in to progress the assessment of costs process.
You will also encounter witnesses in your case. As well as documents like your medical notes and records, the evidence that will assert and hopefully prove your case before the Trial Judge will come from lay witnesses (who will give evidence of facts relating to your case – you may well be one of several witnesses to facts relating to how you came to be injured and in relation to its consequences) and from expert witnesses or ‘experts’. Expert witnesses are engaged to assist the Trial Judge on matters that fall within their expertise and experience. A Trial Judge will be interested in experts’ opinions in forming their judgment (it is not for the expert to stray in to making findings of fact which the Trial Judge will decide having considered all the evidence; neither is it for an expert to favour the party paying them when providing their independent opinion).
In a spinal cord injury claim where liability (whether compensation will be paid) and quantum (how much compensation will be paid) are disputed you may encounter a dozen or more experts engaged by your team and an equal number engaged by the Defendant or Opponents. Cases where there is more than one Defendant are not unusual and it can be seen how Masters need to manage the evidence that comes before the Trial Judge in what can quite easily end up in a Trial lasting weeks depending on the issues in dispute.
Where liability is concerned and depending on the circumstances of how you came to be injured, you may encounter (as clients we have assisted recently have) experts who can assist the Trial Judge on accident reconstruction, seatbelt wearing, engineering, meteorology and surveillance, emergency medicine, neurosurgery, neuroradiology, neurology, orthopaedic surgery, cardiothoracic surgery, microbiology, anaesthesia, general practice medicine, tissue viability nursing, and infectious diseases.
On quantum you may encounter experts in spinal cord injuries rehabilitation, neurorehabilitation, psychology, neuropsychology, neuropsychiatry, speech and language therapy, care and case management, physiotherapy, occupational therapy, assistive technology, accommodation, employment and pension loss, and financial management.
You should assume that you will need to be seen by most, if not all, of the experts (and any representing the Defendant(s)) in order that they can prepare the reports that will form their evidence which will ultimately be considered by the Trial Judge. That can be difficult to orchestrate but is necessary. However sometimes the Defendant will argue that it would be wrong to incur the cost of engaging quantum experts’ reports prior to resolving the issues of whether compensation should be paid at all at what is known as a preliminary issue Trial.
Spinal cord injury cases are complex. You and your family may of course meet with and or encounter case managers, peer support officers, counsellors, benefits advisors, financial advisors and other types of solicitor (conveyancers, family lawyers, will, trusts and probate lawyers, employment lawyers) as your case progresses.
Whilst the number of people involved in a spinal cord injury litigation claim is significant, a good solicitor will help you navigate through each interaction so you are comfortable in knowing who and what is involved, when, and why they are involved and how they are involved.
To read more about Brethertons Spinal Cord Injuries Team - https://www.brethertons.co.uk/site/services/life-changing-injury-solicitors/spinal-injury-solicitors/
To follow us on Twitter - @neurolawyer
To contact us – telephone 01788 557617, or email jonrees@brethertons.co.uk or sianbuxton@brethertons.co.uk or allisonfitchett@brethertons.co.uk.