Here we discuss what you can expect if you are going to court to resolve your catastrophic injury matter.
Undoubtedly, going to court can be an unnerving experience, and if you have suffered from a catastrophic injury, the additional physical difficulties you have can worsen your general level of comfort.
Your solicitors will hopefully have counselled you in advance of your court date so that you know what to expect. Your counsel (barristers) will be the ones negotiating on your behalf and your solicitors will be there to support you throughout the day.
Typically, a catastrophic injury case will be heard in the Four Courts in Dublin.
The injured party is called the Plaintiff and the alleged person or party at fault is called the Defendant (this may be an individual or a public or private entity).
On the morning of the hearing, you will meet with your solicitors and barristers.
There will likely be two senior counsel (barristers) and one junior counsel. Your solicitor will likely book a consultation room within the Four Courts to ensure privacy and comfort.
If you have sustained a catastrophic injury, then it is likely that you will have met with your counsel before the day of the court hearing.
During the pre-trial consultation, your senior counsel will ask you a series of questions, perhaps in more detail than in any previous consultations. They may ask you questions about how the injury occurred, your day-to-day life, your work history and your family life. Your counsel will really just want to get a ‘feel’ for you as a person, so they can accurately portray to the Judge how the injury has impacted your life. Your solicitors will always be in attendance with you during any of your consultations with your counsel.
One of the barristers will then leave for the ‘call over’ of the cases at 10.30 am.
THE CALL OVER
Unfortunately, although you will have a hearing date allocated, there is no guarantee that your case will actually be heard with on that day. This is because there is only a limited number of Judges available at any given point in time.
The cases which will actually be allocated a Judge on the date in question are determined by a lottery system at the personal injuries ‘call over’, which occurs at 10:30 am.
There might only be 2 or 3 judges available and the cases that will be allocated to them are quite literally pulled out of a hat!
However, there is an order of priority that is applied to the lottery system. ‘Specially fixed’ cases will be drawn first. A case that is ‘specially fixed’ is one in which there are witnesses who are coming from overseas to provide their evidence. Catastrophic medical negligence cases usually always have witnesses from abroad (typically, the UK) and catastrophic personal injury cases may have witnesses from abroad (typically, the UK).
After the call over, the barrister will return to the consultation room to advise if a Judge was allocated and indeed, who that Judge is.
In the meantime, while the call over was occurring, the other barrister may have already started negotiations with the Defendant in an attempt to settle your case. Of course, if the case is settled, there will be no need to have a court hearing.
IF A JUDGE IS NOT ASSISGNED TO YOUR CASE
If your case unfortunately has not been assigned a Judge, then your counsel may try to commence settlement negotiations (or continue with them if they have already started).
From a costs perspective, is in everyone’s interest to settle the case outside of the court room, however, if a Judge is not assigned to your case, then it takes the pressure off the Defendant to resolve the case on that date in question.
If your case is not settled, then your counsel will have to apply for a new hearing date. The same lottery system will apply on that future date.
IF A JUDGE IS ASSISGNED TO YOUR CASE
The Judge will sit from 11:00 am to 1:00 pm and then again from 2:00 pm to 4:00 pm. Personal injury cases are heard Tuesdays – Fridays.
As mentioned, from a costs perspective, is in everyone’s interest to settle the case outside of the court room. If you are assigned a Judge on the day, then the Defendant will come under more pressure to settle the case (unless they are of the view they have a very strong case).
If it looks like traction might be gained through negotiations, then your counsel may ask the Judge for permission to delay commencing the hearing until after lunchtime.
COMMENCEMENT OF THE TRIAL
If negotiations are not successful, the case will be called on and everyone will head down to the court room.
Your counsel will present your case to the Judge. The Plaintiff’s side is always heard first, followed by the Defendant’s side. It may take 4 weeks to hear a full catastrophic injury case.
Your counsel will open up the case to the Judge, providing him/her with the main issues at hand.
Everyone who provides evidence to the Judge is called a ‘witness’. The order of witnesses to be heard is as follows:
After each witness is heard, the counsel for the opposition is allowed ‘cross-examine’ the witness to test the accuracy of what that witness says.
As the Plaintiff, you will provide your evidence first. This sounds daunting; however, your senior counsel will ask you simple questions about what occurred, and you will provide your answers to the best of your ability. Your counsel will not be permitted to ‘lead’ any of the witnesses.
The next witness may be your partner, a family member, or close friend. Or a ‘witness as to fact’ (e.g. witnesses who saw or were in close proximity to the event in question).
The next set of witnesses to provide their evidence will be the Plaintiff’s ‘liability & causation witnesses’. They will be expert witnesses who will establish from a technical perspective i) why the Defendant breached a duty of care to the Plaintiff, and ii) that the alleged breach of duty caused the Plaintiff’s injury. In medical negligence cases, the liability & causation witnesses will usually be doctors from overseas so as to avoid any conflict with colleagues here in Ireland. It is becoming more typical for their evidence to be taken by video link, so as to avoid an interruption to their work schedule as much as possible.
The next set of witnesses to be heard will be the medical witnesses who will simply provide factual information on your current condition and your future prognosis. Some of these witnesses may be your treating doctors e.g. your neurologist, your GP, your rehabilitation consultant etc.
The next set of witnesses to be heard will be the ‘quantum witnesses’. These are witnesses who were instructed by your solicitors to assess your past needs, current needs and what your needs will look like moving into the future. For example, they will include care consultants, housing experts, physiotherapists, vocational assessors etc. Their recommendations for your needs will make up the bulk of the value of your claim for compensation. They will be called in a particular order and give evidence to support the Plaintiff under the various monetary headings of claim.
When the Plaintiff’s case finishes, the counsel for the Defendant will then call their witnesses in the order listed above. The counsel for the Plaintiff will cross examine these witnesses, again to test the truth or accuracy of the evidence they give.
Counsel for each side will then make their closing arguments to the Judge.
When both sides are finished, the Judge will then have to decide the case. The Judge may ask both sides for written submissions to assist him/ her in making a decision. The Judge might take a couple of days to make his/her decision.
If the Judge decides in favour of the Plaintiff, then he/she will state the level of the award that is to be provided. In this case, the Judge will typically also award costs favour of the Plaintiff.
If the Judge decides in favour of the Defendant, the costs will typically be awarded in favour of the Defendant.
Either party can appeal the case to the Court of Appeal and thereafter in exceptional circumstances, to the Supreme Court.
If you would like to know anything further in relation to bringing a catastrophic injury case, please feel free to contact us any time.