Assembling the evidence

Although your case is likely to be settled before you go to court, in order to ascertain the compensation due to you it will be necessary to produce evidence to support all aspects of your claim. This will include evidence about the injuries that have been suffered, that there has been negligence on the part of the defendant, that the expenses claimed have been incurred and what future impact the injury is likely to have on your life. Not being able to produce all the appropriate financial evidence may not affect whether you win but it may affect the amount of damages you receive.

It helps a claim greatly if you have followed the proper steps after suffering an injury and have gathered evidence about your claim. (See personal injury - about your claim).

Your solicitor will assist you in assembling further evidence but you should record the incident fully as soon as you can after it happens in signed and dated notes, support your claim with photographs, gather witness information, keep records of dates and names for any medical attention you recieve and receipts for every cost you incur which might relate to your case. (See allowable expenses). It is very useful to keep a special diary where you can record all events relating to your case including medical visits, days off work etc. as they occur.

It is no use merely asserting a loss. If you have lost earnings you will need to prove it, so ideally your evidence will include payslips and a doctor's report to confirm you were unfit to work.

In any claim for compensation the burden of proof lies with the claimant to show that the defendant acted negligently. In civil claims the standard of proof is usually "on the balance of probabilities". You must show by your evidence that it was more likely than not that the defendant's negligence cause the injury and use other evidence to show the extent of damages that should be awarded.

Types of evidence

Using experts

Your solicitor will be able to call on a number of "expert" independent witnesses who can give evidence based on opinion within their area of expertise. To be acceptable to the court as a witness, an expert must be able to show by professional qualfications or experience that they have a special knowledge which is also relevant to particular aspects of the nature or extent of the claim.

Rules exist to restrict the number and type experts who can give evidence and there is pressure on both parties to appoint a "joint expert" so the court is given a single opinion (for example a medical opinion on the extent and nature of an injury) on which to make a decision for each particular aspect of the case.

The claims protocol

Injury claims fall under the new Civil Procedure rules which actively seek to encourage parties to settle cases out of court before coming to trial.

Prior to commencing proceedings solicitors must follow a rigorous pre-action protocol which lays down a timetable for initial resolution of the dispute.

This requires that the claimant sends the proposed defendant a letter of claim. A letter of claim must detail:

• a clear summary of the facts
• the nature of any injuries
• the financial loss incurred
• in the case of road traffic accidents, the name and address of the treating hospital and the hospital reference number

The letter should also request the name and address details of the defendant's insurer (or in cases where the insurer is known, the letter can be sent direct to the insurer).

The defendant has 21 days to reply to the letter of claim and must identify the insurer (if any). If there is no response within the 21 day time period, the claimant can initiate court procedings.

Where a response is received and an insurer is notified they are permitted three months to investigate the claim. At the end of the three month period they are required to inform the claimant whether liability is accepted or denied.

If liability is denied they must give reasons for the denial of liability.

Civil Procedures - Part 36

Several measures within the Civil Procedures are designed to persuade both sides to reach agreement and settle cases without troubling the courts.

The most potent of these (contained in Part 36 of the Civil Procedure Rules) allows either side to offer to settle the case for a fixed sum before the case reaches court. Part 36 of the Civil Procedure rules provides for 21 days consideration of the offer to settle.

If the offer is refused by the other side and the case proceeds to trial, there may be severe costs and interest implications for the refuser if the courts awards a lesser settlement than the original sum offered under Part 36.

With legal costs at stratospheric levels it is very possible for the side that refuses a "Part 36" and proceeds to trial to win the case but "lose" the settlement.

Claimants are thus strongly advised to pay due regard to their solicitor's advice on settlement if a Part 36 offer is made which comes close to the estimated expected value of their eventual damages.

interim payments

If liability is not in question but the final award of damages is in dispute and the final assessment may take some time, it is possible to secure an agreement for an interim payment. This can be done by agreement between the insurers or solicitors or by an order of a court.

Interim payments normally require that a substantial claim for damages is very likely to succeed and that it will be a considerable time before a final assessment will be possible. Between a third and a half of the "possible" future liability might be granted, with the figure paid deducted from the settlement when a final assessment of the claim is reached.

if the case goes to trial

In the (very) unlikely event that your case goes to trial, the case will be heard by a judge who will decide on the liability (whether the defendant was negligent), the quantum (how much the claimant should be awarded) or, more usually, both.

The claimant's solicitor will normally open the case and evidence will be brought forward by both sides in support of, and in refuting the claim.

The defendant's solicitor will then sum up the presentation of the defence case which will be followed by a summing up by the solicitor acting on behalf of the claimant.

The judge will then make a a decison on the case (a judgment) which will be given immediately or after retiring for consideration.

The judgment may be appealed by either party on the grounds that the judge's findings of fact or law may heve been wrong. While an appeal on findings of law may be successful, judgements on findings of fact are very rarely overturned.