Going To Court: Your Claim Being Issued At Court Versus A Trial
In this article we explain what the phrase “going to court” means in relation to your personal injury claim.
We look at when a personal injury claim is said to go to court with the issue of court proceedings. To be distinguished from you actually going to court should your claim reach the unlikely stage of a trial.
See are online FAQ about personal injury claims and the need to go to court. Plus our online Q&A. Real-life questions answered for accident victims.
- Going To Court: Your Claim Being Issued At Court Versus A Trial
What does “going to court” mean?
Solicitors will often use the phrase “going to court” to refer to the issue of court proceedings.
The issuing of proceedings is very different than concluding your claim in a trial.
What do the public think “going to court” means?
You may think of a personal claim going to court as being the trial – as you will have to go to court to give your witness evidence.
What does your solicitor mean when your personal injury claim has to go to court?
Whereas your solicitor will often be referring to your personal injury claim going to court with the issue of proceedings.
There are three potential meanings of a personal injury claim going to court:
Your Personal Injury Claim Is Issued At Court
When your claim for personal injury (accident claim, medical negligence, industrial disease, etc.) is disputed – it proceedings will need to be issued at court, This will allow the court to become involved and so ensure the claim is resolved.
In this process your solicitor lodges your claim at court. The documents used to issue proceedings are stamped by the court (sealed).
This paperwork is then served (formally sent) on the person believed to be at fault (Defendant) and the insurers.
See our issue court proceedings article for more details.
Negotiation with insurer prior to issue of proceedings
Prior to the issue of proceedings – it is usual that the insurer of the person you hold at fault will deal with the legal aspects of the claim.
A pre-action protocol should be followed to try and resolve personal injury claims without the need for court involvement.
Involvement of Defendant solicitors
Once proceeding are issued and served – a Defendant solicitor will be instructed by the Defendant’s insurers.
The Defendant solicitor will look at the evidence and take a view whether liability for your accident should be accepted or denied.
Defendant solicitors often take a different view than an insurer
The Defendant solicitors’ view (as legally qualified professionals) is very often different than that taken by the insurer prior to issue of proceedings.
Admission of liability
Therefore, very often after court proceedings are commenced – there will be an admission of liability.
An “admission of liability” refers to the process of the Defendant accepting legal fault.
| Liability Accepted But Dispute On Quantum Continues |
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| Sometimes, liability (legal fault) might be accepted. However, a dispute might remain as to the calculation of the value of the compensation payment you should be entitled to recover (quantum). |
Full Trial Of Your Personal Injury Claim
Legal fault (liability) may not be accepted following the issue of proceedings.
| Your Claim Can Settle At Any Stage Prior To Trial |
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| Once your claim has been issued at court – there are a great deal of steps that the parties have to take before your claim reaches a trial. The vast majority of personal injury claims will settle before trial. It might be that the person at fault accepts fault after seeing further evidence ordered by the court or a Part 36 offer is accepted. Claims have even been known to settle at the door of the trial court. Yes – claims really do settle just before the parties go in to commence a trial. Rest assured – a trial is extremely unusual. It is an expensive process that most Defendants wish to avoid. |
Thereafter, your solicitor will push your claim along to a trial on liability (who is at fault) and quantum (the amount of compensation).
A trial is the last stage of the court process. In essence – a final hearing to decide your personal injury claim before a judge. At trial the judge will:
- See all of the written evidence.
- Listen to oral evidence with cross examination.
- Hear the arguments from your solicitor and the Defendant solicitor.
- Make a decision as a matter of law who is believed to be at fault.
- Calculate the amount of compensation you should be entitled to recover (if the judge decides in your favour).
Once a trial is determined in your favour – it is at this stage the Defendant and his insurer will have no choice, but to make a payment to conclude your claim in the sum decided by the court.
Trial On Quantum / Assessment Of Damages Hearing
When liability is accepted by the person-at-fault, but an agreement cannot be reached as to how much compensation you should recover then a quantum only trial (also known as an assessment of damages hearing) will take place.
Therefore, going to court for a quantum only trial – means that the judge will only see and hear evidence relating to your injuries and financial loss.
This evidence will be given by experts (such as medical experts who produced reports for your claim) and by yourself (you are considered a witness as to fact as to the symptoms you have and are experiencing).
Going to court to give evidence at trial
As an injured party – a personal injury is made on your behalf by your solicitor.
Your solicitor will take all the necessary steps to build your claim – gathering evidence, instructing experts and liaising with the party-at-fault’s representatives.
When a trial takes place – the judge will need to see and hear all of the evidence. This will include your oral statement as to the accident circumstances (or other events leading up to your personal injury) and the extent of your injuries.
Your written statement together will all of the other evidence will have already been submitted to the court in a trial bundle. This bundle is indexed by your solicitor and numbered.
The court is looking to see that your oral evidence is consistent with your written statement.
The judge will listen carefully to your answers when the Defendant solicitor or barrister cross examines you.
| An Honest Account In Cross Examination Will Win Your Claim |
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| Cross examining refers to the process of putting questions to you about your evidence. The process sounds quite intimidating. However – when you tell the truth, a trained judge will quickly see that your are giving an honest account and you will be considered a credible witness. |
Your personal injury claim is unlikely to reach trial
It is very common that a personal injury claim will be issued at court. However, it is quite rare a trial will be necessary to finally settle the matter.
A trial is an expensive step that will have to be met by the person-at-fault.
Therefore, the practical reality is that claims typically settle prior to trial to avoid unnecessary legal costs being incurred.
Your claim can settle at any time prior to trial. Claims have even been known to settle on the day of the trial just before entering the court for the trial to commence – this is know as Settling “on the door of the court”.
FAQ
Must The Court Always Be Involved When A Child Claims Compensation?
For a child to make a claim for personal injury – a litigation friend must provide instructions on the child’s behalf.
However, the claim is still the child’s claim as is the compensation payout awarded.
Therefore – to conclude a child claim, the court must be involved in what is known as a minor settlement hearing / infant approval hearing.
At a minor settlement hearing – the court will act in the interests of the child. The judge will check the compensation payout is sufficient. Compensation monies are then paid into the Court Funds Office and invested as the judge feels is in the interest of teh child.
When the child becomes an adult (18 years in England and Wales) – access to the monies (with compound interest added) will be given.
See our child accident claim article for full details of how to claim personal injury compensation for children.
How Long After Issue Of Court Proceedings Will It Be Until A Trial Takes Place?
Your personal injury claim may never have to go to trial. Most claims settle between issue of court proceedings and a trial taking place.
However, if resolution cannot be found and a trial is necessary – the earliest it can take place is typically 9 months after issue at court.
There are many steps necessary to be taken at court before trial. Thus, the likelihood is that a trial date will be beyond the 9 month period and will often run into years.
Q&A
QUESTION: Will I Have To Go To Court To Claim Compensation For Personal Injury?
Your question refers to whether you will actually have to attend at court in person to give evidence to support your claim.
This is extremely unlikely for the following reasons:
Personal injury claims mostly settle before court involvement
Usually most type of claims will settle prior to the need to involve the court.
When the facts are clearly in your favour – the person-at-fault (or their insurer) will typically accept liability and make an offer to settle your claim.
If you accept the offer – your claim will settle pre-action.
Starting your claim at court does not mean you have to attend at court
If the facts are not so clear, liability (legal fault) is denied or how much your personal injury claim is worth is not agreed- it may be necessary for your solicitor to start your claim at court. This does not mean that you need attend at court to give evidence. Only that your claim commences at court.
Settlement before trial
Most claims that are issued at court (commenced at court) will either settle soon after issue, during the court process or at the door of the trial.
Very rarely will it ever be necessary to have a trial. However – should a trial have to take place then you would need to go to court in person (attend at the trial) to give oral witness evidence.
SUMMARY
Our articles has set out how the phrase “going to court” can mean several different things. From the commencement at court by the issue of proceedings; attending at court to give evidence at a final trial.
