Litigation should be the very last resort. Bear in mind the wise words of Charles Dickens when referring to the abominable court system in his book Bleak House. Unfortunately, little has changed since 1853.
“This is the Court of Chancery… which gives to monied might; the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who does not give—who does not often give—the warning, “Suffer any wrong that can be done you, rather than come here!” Charles Dickens 1853
Many people find themselves forced into taking court action in order to resolve their complaint. The regulatory bodies invariably fail to regulate; the GMC is unlikely to find against a negligent doctor, CQC fail to apply sanctions against a poorly performing NHS trust and PHSO will either refuse to investigate or carry out such a superficial investigation that the findings are worthless. With no acknowledgement of wrongdoing and no justice many people find it difficult to achieve closure and move on with their lives.
Sometimes the complaint process itself will involve court action in order to ascertain damages, or possibly continued emotional pain will drive you to initiate your own proceedings. In either event you will find yourself caught up in the complexities of the legal system when you are at your most vulnerable.
I wish I could offer the definitive guide here to understanding the legal system, so that you can steer a clear path through the many obstacles that await you. Unfortunately, the system is deliberately complex, so that even those practising the profession fail to understand it completely. This mystique forces all of us to pay for legal advice at exorbitant hourly rates plus V.A.T.
If your case is medical then you may find this advice from a specialist Solicitor helpful.
“In terms of the legal test, for any clinical negligence claim to succeed a claimant must prove his/her claim on the balance of probabilities, which means over 50%. A claimant must first prove there was a breach of duty and that the breach of duty caused an injury.
Breach of duty:
To establish that a doctor has breached his/her duty of care, the Claimant must show that the doctor has followed a course of action that is not supported by any reasonable body of medical opinion. If the Defendant can show that the doctor acted in accordance with a reasonable body of medical opinion, then the Defendant will have a defence to the claim. This is often referred to as a 10% rule. It is said that if 10% of doctors in the country would have taken the same course of action at the material time, then it will not be a negligent act.
If we are able to prove that some or all of the treatment was negligent we would then need to prove causation. This is also known as the “but for” test. This test has a high threshold. You have to show that, but for X happening, Y would not have occurred. It is for the Claimant to prove that the injuries suffered were as a result of the Defendant’s negligence. The case of Gregg v Scott states that causation has to be shown on the balance of probabilities, which means more likely than not/over 50%. It can therefore be said that the test applied is “but for” the negligence the patient would not, on the balance of probabilities, have suffered the harm in any event.”
How do I find a good solicitor?
The best thing you can do with solicitors is avoid them. If you go through life with one marriage, one mortgage and one death, then you have done pretty well as these legal events tend to come in pre-valued packages which will not break the bank. As soon as you get into litigation you have to sign a blank cheque and hope for the best. They charge by the hour (well six minute intervals actually) and there is no way of keeping control of your costs. At £20 to open an email and another £20 to send you a reply; you soon stop asking questions once you tot up how much it will cost you to get the answer. You may be able to pay for legal costs from your home insurance policy so worth checking this out. Some solicitors will give you a fixed price and at least this gives you peace of mind. If not sure ask for a fixed price for each step in turn, i.e giving advice, drafting papers, pre-action protocol letter etc.
The expensive advice you obtain is also tainted by their own agenda. If you have assets the chances are they will take on your case, giving you false hope that the legal system will provide the justice which has so far eluded you. They can promise nothing of course until they see all your evidence. So you sign the agreement, pay your deposit up front and start to feed them paperwork. Whatever you give them, like a hungry child, they will want more. Every email, every letter, every piece of correspondence that ever passed between you and the organisation and even your bus ticket if you still have it. This is called ‘front-loading’. All of these pieces of paper are photocopied and filed by some junior who is earning a fraction of the hourly rate you are paying; they may even be an intern working for nothing, but all that paper is money in the bank for the solicitor. Solicitors accrue big, fat, files of paperwork as they set about making a mountain out of a mole-hill.
Then, after a month or two, they will be unable to make a final decision, because your case is very complex, so they advise you to have all this paperwork looked at again by a barrister who charges another ridiculously high fee. If at this point you start to shift about in your chair and it looks like you might close your cheque book, they will reassure you with the statement that, ‘You need to have a barrister, so that you can take the culprits straight to court if you have a good case.’ Having a barrister is therefore in your own best interests and you start to wonder why this wasn’t mentioned before.
It turns out that solicitors are just very expensive barrister lackeys who do all the labouring but none of the arguing. It’s barristers who know the law and barristers who stand up in court to defend your case. Now if you have a half-decent solicitor they will find you a barrister who is a specialist in the law related to your case, but most of them will just farm the stuff out to the ‘in-house’ barrister who was a chum from school.
Some months after your initial and optimistic visit to the solicitors you will hear back from the barrister via the exquisite note paper used only by solicitors and the Queen. Spend a few minutes savouring the texture of this handmade paper as you carefully unfold the letter, as you are unlikely to enjoy the contents half so much. There is every possibility that despite your reams of damning evidence and the very many inconsistencies you have uncovered, the barrister will conclude that you do not have a strong case. One reason for this is because many of the legal breaches will be ‘time-barred’ due to the vagarious nature of the law which puts arbitrary time limits on taking legal action. If you break the law, then you should be held to account by the law, but it turns out that those elements which come under ‘public law’ have a strict three month time limit which is virtually impossible to meet. You must initiate court action within three months of the offence being committed and of course at that time you were embroiled in the complaints process which takes rather longer than three months to conclude. Much of your best evidence will hit the expensive shag pile beneath your barrister’s polished table because it is now inadmissible in court.
At this point you have come to a fork in the road. If your case is likely to deliver large six figure sums in compensation then the solicitors will do all they can to keep you on board and may even offer a no-win, no-fee deal. There will be free tea and coffee and the finest chocolate biscuits at your next visit. If however, the compensation looks to be considerably lower than that, they will probably warn you that although you do have a case, it would be a difficult one to argue in court and should you lose you would of course have to pay all the legal fees for the defendant; some large public body or NHS trust who have used the very best legal team that money can buy. The legal system makes decisions based purely on ‘quantum’ and they don’t allow issues like truth or justice to muddy the waters. It would be a good idea to ask the question about compensation at your initial meeting, as this could save you a lot of time and money.
So, with an initial commitment running into the thousands, you now have to decide whether to put your house on the line and risk bankruptcy for the sake of a principle. Most sensible people bail out at this stage and that is how this country delivers justice. Like a game of poker, the highest bidder wins even if their opponent is holding all the winning cards.
So what should I do?
If you really can’t rest without doing ‘something’ then find your own barrister and cut out the solicitor. This will saves you oodles of money. You can appoint your own barrister using a system called ‘Direct Access’ but most solicitors are unlikely to tell you about this. Barristers deliver their services directly to you without the middleman. You can appoint a specialist in your field and although expensive, they work for a fixed fee and you know the total you will pay up-front. You will have to present the paperwork yourself, in a logical format with a numbered reference list at the front to guide them. As you have done all your own work so far and you know the case better than anybody, this should not be a problem. No ‘front-loading’ as you decide what is relevant. The barrister will take only a short time to run their beady eye over your evidence and will present you with a report which is included in the initial payment. On the basis of this report you can decide whether to go forward or quit; all for a single payment of probably less than £2,000.
If it looks like you could claim a massive payout then it could be a good time to negotiate a no-win, no-fee arrangement with a solicitor or just continue to work with your barrister as they will represent your case in court anyway. With a barrister you always pay up-front and you always pay a single fee for a set amount of work. No hourly charge.
If it looks like you have a case, but not a strong one in terms of compensation then you could try the small claims court. You can claim up to £10,000 in compensation and ‘in most cases’ (convenient loophole) the losing party will not incur costs, reducing your risk of bankruptcy. The loophole is the discretionary power held by the judge to find you ‘unreasonable’ and therefore worthy of punishment for your audacity at using the court system to simply display your vexatious nature. The judge doesn’t require proof of your ‘unreasonableness’ and you won’t find out until the final judgement is made. You can of course complain to the Ombudsman if you think that the judge has acted unfairly and so the merry-go-round spins again. Another trap to avoid is the fact that if the judge finds in your favour but awards you the same or less that a previous offer from the defendant then you automatically get the other sides costs. Solicitors are wise to the amount likely to be offered by the judge and set their pre-court settlement agreements accordingly.
If your case is complex and moves into ‘fast track’ or ‘multi-track’ then costs can be claimed by the winning party, so consider this carefully. In small claims you pay your own costs and that could include a barrister to represent you or you can represent yourself as litigant in person. You will be up against the ‘big boys’ of course, as the defendant can afford to pay for the best. The chances are that they will play a game of brinkmanship and try to frighten you with threats of high costs should you lose. If you could guarantee a fair hearing and you have compelling evidence then it could be worth a go. Unfortunately, truth and hard evidence are not always enough to win a case. It all depends on the judge.
What about the Judge?
At court the outcome will be determined by the Judge and often a single Judge. Some Judges are downright corrupt, others are misguided and virtually all of them are biased in favour of the establishment. The Judge will be able to use all the smoke and mirrors provided by the law to dismiss valid evidence and cut short proceedings. You are at his mercy, unless you fancy taking legal action against the Judge ….
In case you think I have been too cynical then I suggest you read this true account by Debbie Kendall who found that her legal team colluded with those of the defendant to cheat her from receiving her rightful compensation following an horrific accident and NHS negligence. It’s an eye-opener. legalmedicalnegligence
To be fair, there are some super solicitors, brilliant barristers and unbiased Judges out there, but for the uninitiated it is a lottery as to whether you will find them.
Still want to go ahead?
If you still want to go ahead then you may find some of these links useful:
howtotakesomeonetocourt. Paul Fletcher’s user friendly account of how to use the small claims court.
which.use-the-small-claims-court ‘Which’ guide to using the small claims court.
solicitorsfromheaven Solicitors from heaven could help you to find a good solicitor
www.solicitors-from-hell.co.uk Solicitors from hell could help you to avoid the worse
legal500 Legal 500 allows you to find out about Solicitors and law services but bear in mind that this is written by the solicitors themselves!
barcouncil – instructing-a-barrister The bar council’s helpful advice on how to find a direct access barrister.
barcouncil. Bar council guild on how to be a ‘Litigant in Person’
avma If your case concerns a medical accident then AvMa could be a good starting place.
The judicial system is costly, confusing and corrupt. Heed Dickens words!