Going to court is something that many people will not have to worry about in their lifetime. However there are occasions when, for whatever reason, you may need to enter a court of law. In some cases, Personal injury claims may require your presence in court. The following guide has been written to answer questions you may have during the personal injury claims process. These include aspects such as “what happens when I go to court?”, “how long does a court hearing last?”, and “will I be required to go to court?”
Solicitors are often required to attend Court hearings and in a personal injury claim your Solicitor may attend, on average, two hearings in any given claim. Your presence as the Claimant is generally not required at these hearings as most deal with technical matters and procedural rules, which your Solicitor can manage on your behalf.
Sometimes however, your presence is required at Court. The most common reason why you may need to attend Court is for a Trial of your claim or an Assessment of Damages Hearing, though there can be others.
A Trial may take place where the Defendant, who you say is responsible for your accident, either:
a) denies liability in full; or
b) admits liability, but puts you to proof.
In the latter instance the Defendant will accept they have breached their duty to you and/or been negligent, however they will ask you to prove that the accident happened as you say and that it caused your injuries.
The Court will have to decide, on the facts of your claim, whether they think the Defendant is liable for your accident (unless the Defendant has already accepted this), and if so, that it was the Defendant’s failure to comply with its duties or the Defendant’s negligence which caused your injuries. If the Court decides these issues (known as liability and causation) in your favour then it will then go on to consider the value of your claim (known as quantum) and make an award of compensation.
An Assessment of Damages Hearing may take place where the Defendant admits liability, but you and the Defendant have been unable to reach agreement as to quantum. In this instance the Court will simply assess the value of your claim and make an Order setting out how much compensation you are to be awarded.
It is only likely to be necessary to go to Court in cases where you have been unable to persuade the Defendant that they are liable for your accident, or that they are at significant risk of being found liable for your accident, or where you have been unable to reach agreement as to quantum.
Parties to a personal injury claim are encouraged to negotiate and to use tools such as mediation to try and negate the need to go to Court. The reality then is that very few cases actually go so far. Only a small percentage of personal injury claims taken on by Smith Jones in the last two years have actually ended at Trial with a Judge determining liability, causation, and quantum. The likelihood depends on a variety of factors and of course the facts in every case are different.
It is important to point out that we issue Court proceedings in many cases; we do this to move your case forward and achieve the best result for you. Just because Court proceedings are issued does not mean that your case will ultimately result in Trial and that you will have to go to Court. Many people ask us though about this possibility and what it will involve. Here is a brief guide on what to expect if your case is one of the few that proceeds as far as Trial:
1.A Barrister will represent you at Trial. It is usual for the Barrister to have spoken with you in conference before the Trial (either in person or by telephone).
2.Any Trial will be based on your witness evidence. Prior to Trial your Solicitor will have prepared a witness statement covering your personal details, the circumstances of the accident, the injury and symptoms you suffered, and your recovery. Your Solicitor will send you a copy of your witness statement near to Trial as a reminder of your evidence.
3.Your Solicitor will notify you as soon as a Trial window is set. A Trial window can be 2-3 weeks long. An average personal injury case will be heard on 1 day during that period. You will be asked to advise your Solicitor of any dates during that period when you are unavailable and to keep all other dates free until you are notified by the Court of the Trial date.
4.As the Trial window gets closer the Court will list your claim to be heard on a Trial date within the Trial window. This will advise you of the date, time, and location of the hearing. Your Solicitor will notify you of this immediately.
5.On the day of Trial you will be expected to attend Court, along with any witnesses to your accident or injury. You are welcome to take a friend or family member along for support.
6.When you arrive at Court, you will have to make your way through security. This is very similar to airport security.
7.Once you have made your way through security, which is usually a very swift process, you need to ask at the reception desk where you need to go. In some of the smaller Courts your name will be on publicly displayed boards in the foyer of the Court indicating which Court room your case will be heard in.
8.You must make your way to the relevant Courtroom, which is always signposted, and locate the Court Usher. The Court Usher will record your attendance and advise if your Barrister or Solicitor are at Court already. In the event they are not, when they do arrive and report to the Usher themselves, the Usher will point you out to them.
9.You will be required to wait in a public waiting room or may be taken by your Barrister into a private room to discuss your case and prepare you for what to expect.
10.Most Trials are heard in a Court room, similar to what you on see on television. There will be a slightly elevated bench where the Judge will sit to preside over matters. On one side of the Judge will be a witness box from where you will give your evidence. Your Barrister and the Defendant’s Barrister will sit on the first row of tables facing the Judge and witness box, and your Solicitor and witnesses will sit behind them.
11.Whilst the Court itself may look like something you see on television, it is very rare in a civil Trial, which a personal injury claim is, for the Judge or the Barristers to robe. In other words, it is unlikely they will be wearing the black gowns and wigs, which are so often a feature in our favourite soap or television drama, and they will more likely than not be dressed in suits.
12.When you are called into Court, your Barrister will offer a brief opening explanation of your case and the other Barrister will do the same for the Defendant.
13.You will then be called to give your evidence first. Your own Barrister will ask you some very basic questions about whether the witness statement is yours, before passing matters over to the Defendant Barrister who will then proceed to ask you some questions. This can be quite intimidating as the Defendant Barrister is there to cast doubt on your evidence, however, all you can do is answer the questions honestly and to the best of your ability. Your Barrister may then have some additional questions for you, and it is common for the Judge to sometimes ask a few questions of their own.
14.Once you have given your evidence, any witnesses on your behalf will be called to give their own evidence and a similar procedure will follow.
15.After all your witnesses have given evidence, the Defendant witnesses (if any) will be called forward to give their evidence. In this instance, it will be your Barrister who asks the most questions and tries to cast doubt on the Defendant witnesses’ evidence.
16.Once all the witnesses in the case have given their evidence, both Barristers will provide a closing argument, summarising the evidence the Judge has heard. The Judge will then be required to provide Judgment.
17.In the event the Judge:
Decides the claim in your favour:
i.They will go on to assess quantum and determine how much you should be awarded. Both Barristers will put forward arguments as to what they think your claim is worth with reference to Judicial College Guidelines on Quantum and case law (cases similar to yours).
ii.The Judge will then finalise their Judgment to include an amount of compensation and any costs issues arising.
Decides the claim in the Defendant’s favour:
i.You will be awarded nothing by way of compensation.
ii.The Court will then determine the costs owed to the Defendant (if any). If your case is covered by Qualified One Way Costs Shifting, as all cases post 01 April 2013 are, then no costs are likely to be payable to the Defendant, unless you have been found to be fundamentally dishonest (in respect of which please see Lucy Johnson’s article here.)
iii.If the Court does not decide the case in your favour, this does not mean they do not believe your evidence, simply that they could not, on the balance of probabilities, decide that the Defendant was more likely than not liable for your accident.
We find that Claimant’s in personal injury claims fall into two categories: those who want to have their case heard in Court and those who want to avoid it as far as possible.
Wanting your day in Court is one thing, however if you can achieve an advantageous settlement without going to Trial that is almost always preferable for all involved, not least because the Courts’ time is precious, Court fees have risen considerably this year, and the costs and therefore the risks to both sides can be greatly increased by going to Trial.
The majority of Claimants would however like to avoid going to Trial if possible and see it, quite rightly so, as an option of last resort.
The age old adage of ‘I’ll see you in Court’ is rarely, if ever, uttered by Solicitors and surely has only ever been said to add drama to a film or television script.
Going to Court and giving evidence is a daunting process for most people, however, we at Smith Jones will prepare you for that eventuality if and when the need arises and ask that when you make a Personal Injury claim you do not place undue worry or concern on this. You can always raise with your Solicitor any concerns you have in this regard and they will be happy to discuss matters fully with you at any time during the course of your claim.
To make a claim for compensation, or to discuss your potential claim today, call us now on 0800 195 95 90 or click here.