Claim against hospital, is the Trust the Defendant?

**Peridot** · 25th October 2018, 11:59:AM

Hi Doveman,

Is this a personal injury claim or a medical negligence claim? If medical negligence have you made a formal complaint to the hospital in the first instance? To pursue a medical negligence claim that needs to be done first before bringing a claim. You will need to obtain a copy of the complaints procedure from the hospital if you haven't already.

**doveman** · 25th October 2018, 20:41:PM

Hi Peridot

It's actually a data protection/discrimination claim.

**Peridot** · 25th October 2018, 22:32:PM

Hi again,
It’s NHS Trust that the hospital comes under.

**doveman** · 25th October 2018, 23:04:PM

OK, great, thanks, that's one less thing to worry about getting wrong!

I previously issued a claim against another Trust but because the N1 form doesn't have separate boxes for the Defendant's name and their address and because the space is limited, I wasn't sure how to format it and put (Legal Services) after the Trust's name as I was advised to put that in the address. Now on the court papers the Defendant is listed as xxx NHS Trust (Legal Services). Do you think this will cause me any problems?

**Peridot** · 31st October 2018, 08:30:AM

Hi Doveman,
So you have th full name of the trust on the N1 form but 'legal services' in brackets after the full name?
Not sure why you were advised to include legal services. Have you heard from them as yet? It may be necessary to amend your claim form although legal services will probably be the department who deals with the issue.

**doveman** · 1st November 2018, 00:39:AM

Hi Peridot,

Yes, I put the trust's full name followed by (legal services). I assume they asked me to put that to ensure it went to the right person as there's more than one department in that building.

They didn't bother responding to my claim, so I returned the "Request for Judgment" form at the bottom of the Notice of Issue. From what it says on there, it seems by not responding the defendant has effectively conceded and the Court just has to decide how much damages to award. I don't know if the defendant can still make representations on that point or if the Judge will just consider my submissions before deciding.

I received an order transferring the case to my local county court and then an order from that court ordering that it be listed for further directions and case management but a date hasn't been set yet. I did file a privacy application with my claim to prevent my confidential medical information being made public so maybe that will be dealt with at this hearing. Do you think I should write to the Judge asking to amend my claim form now or just wait until the hearing?

**Peridot** · 1st November 2018, 08:59:AM

Hi Doveman,
They may apply for the summary judgment to be set aside but don't worry it will just go through the process.
Who asked you to put legal services on the claim form in addition to the trust name?
I would wait for the directions appointment hearing then the whole matter will be timetabled. To amend the claimant name an application would be needed. You could deal with it at directions. I just wonder whether the trust are playing silly whatsits refusing to respond and plan on claiming its not the correct defendant. I wouldn't worry too much the Judge will give them short shrift if that's their plan.

**doveman** · 3rd November 2018, 13:41:PM

Hi Peridot,

I was worried that the Trust might be playing games and planning to claim they aren't the named defendant. Thanks for reassuring me that the Judge won't stand for that. The particulars I filed with my claim just name the defendant without the (Legal Services) bit and it was served to the right address, so they haven't really got any excuse for claiming they didn't realise they were the defendant.

As I recall when I phoned the Trust they gave me the number for legal services and when I called them they advised me to put "Legal Services" or "Legal Department" on any correspondence, so they didn't specifically tell me to put that on the claim form as such. I put (Legal Department) after the Trust's name in the address on the pre-claim letter (in the body of the letter I named the Trust as the defendant without anything after) but (Legal Services) on the claim form.

I've just received notice today that the directions and case management hearing will be on 7 November. They don't give much notice do they! There's nothing to indicate what is going to be on the agenda, so it's rather difficult for me to know what I should prepare for. Should I just draw up a short written application asking to change the name to remove (Legal Services) and hand that up to the Judge at the hearing?

**Peridot** · 5th November 2018, 11:59:AM

Hi Doveman,

In the bigger scheme of things it would appear t

he claim form has

been delivered to the correct place. It would be worth contacting the legal department to ask if they will be taking issue and if so whether they consent to the amendment being made. If they agree to the amendment then a consent order can be prepared for you both to sign and file at the Court for the Court to approve. It will be necessary for an application to be made for the Court to approve the agreement (or if no agreement then to consider the amendment that you want.

If the Defendant states they are not taking issue with the name on the Claim Form then do make sure you get that in writing from them.

Technically, under the Civil Procedure Rules (CPR) Rue 17 states that when making an application to amend a statement of case (this includes the Claim Form), the applicant must file and serve:

• Form N244. The draft order should ask for your client's costs if the other parties have unreasonably refused to agree the amendments, and
• a copy of the proposed amended statement of case (claim form in this instance)

The fee is £255 (for an on notice application). Usually a hearing is recommended, however the application may be dealt with by the court without a hearing.

As you have a directions appointment imminently it would appear sensible for the matter to be dealt with at that hearing so I would suggest having the application available if needs be, together with the 'amended ' claim form (in triplicate) so if needed it can be filed following the hearing. If the Court is minded to deal with this during the hearing you may not need an application but best to be ready with one if needs be.

You will need to redraft the claim form amending the Defendant name change in red, so keep the trust name as is and just colour the '(Legal Department)' wording in red. Prepare 3 copies for the Court office to seal. Then one for the Court file, one for the Defendant and one for you.

It may be sensible for you to make a written requests by way of a letter (or email) to the relevant court, to let them know what you are wanting to do, bearing in mind the timescales. Explain the issue and explain what has happened with regard to the defendant name. The Court can always order that an application be made, if necessary.

You should copy the Defendant into your communications with the court and ensure that the court is aware that this has been done.

**doveman** · 5th November 2018, 19:41:PM

Hi Peridot,

Thanks for the detailed advice, that sounds fairly straightforward. What do you mean by "ask if they will be taking issue" though?

I faxed the court today (they don't provide an e-mail address) to inform them that I won't be able to attend at such short notice, as I'm disabled and need time to arrange someone to assist me. This should have been clear from the papers I filed with my claim but maybe they haven't looked at them yet.

EDIT: Sorry I think this cold is dulling my brain. I guess by "taking issue" you mean whether they are going to make a fuss about the error. Even if they said (in writing) that they aren't going to though, wouldn't I still need to ask the Court to amend it anyway to ensure the defendant is correctly identified on any further orders or decisions, to avoid any issues that might arise with enforcing the decision otherwise?

**Peridot** · 5th November 2018, 22:58:PM

Hi Doveman,
Making a fuss far better description than taking issue. It is worth mentioning in the Court then it is on record, but if you are going to worry about it then maybe best to amend the form if it helps.
Annoying the Court hadn’t picked up you needed more notice. Have you let the Defendant know you won’t be able to attend? Always best to let them know as if adjournments can be agreed then there is less likelihood of an issue over wasted costs.
Keep us posted

**doveman** · 7th November 2018, 11:35:AM

Hi Peridot,

When I e-mailed the Defendant on Monday to ask them if they'd consent to amending the claim form I also advised them that I'd notified the Court that I can't attend the hearing and have asked it to reschedule. I also asked them to confirm they agree to this adjournment. They haven't replied yet, so I guess I'll give them till the end of the week and then I'll have to file an application to amend without their consent.

I phoned the Court yesterday just to check they'd received my fax. It was a bit worrying when the recorded message said they take 10 days to process correspondence but thankfully when someone eventually answered they confirmed they'd received it and I told them I'd notified the Defendant.

**doveman** · 13th November 2018, 14:53:PM

Hi Peridot,

I've drafted the text below to put in s10 of the N244 form and would be grateful for your feedback. I've replaced the name of the trust with xxx here for confidentiality reasons. I might remove the bit about seeking costs as I won't really have any as I qualify for fee remission. I did ask counsel for a quote for drafting this and my privacy application and representing me at a case management and directions hearing, but it was more than I could afford, especially as he advised that I am unlikely to recover those costs.

"Due to a combination of the N1 claim form not providing separate boxes for the Defendant's name and address and the claimant having to file his claim unassisted, the Defendant has ended up being listed as "xxx NHS Trust (Legal Services)" on the Court documents. The "(Legal Services)" part is just the department the Claimant was advised to send any documents to and the Defendant should be listed just as "xxx NHS Trust". The Defendant is correctly named on the Particulars of Claim which were filed and served with the claim to the Defendant's address and he was correctly identified in the pre-action letter which was posted to the Defendant's address and also e-mailed to him, so there can be no question that he did not appreciate that he is the Defendant in this claim. An amended N1 claim form, with "(Legal Services)" marked in red to indicate it should be deleted, is included in triplicate with this application, one copy for the Court file, one for the Defendant and one for the Claimant. The Claimant e-mailed the Defendant on 5 November 2018 (copy attached) asking him to consent to this amendment but he has not responded, so the Claimant has been forced to file this application without consent and seeks his costs for doing so as the Defendant's refusal to consent is unreasonable.If the Court is satisfied that it should make the requested order on the papers the Claimant is happy for it to do so, otherwise he requests a telephone hearing."

In the box for Defendant's name at the top of the N244, should I enter it without the (Legal Services) bit or as it's currently shown on the Court documents?

The form asks me to choose between having my application decided at a hearing, at a telephone hearing or without a hearing. I know with some applications (in the tribunals at least, I'm not sure about County Court) one can ask for it to be considered without a hearing but if the outcome is unfavourable one can then request a reconsideration at a hearing. Would that be the case here? It would seem preferable for everybody if it can be decided without the need for a hearing but if there is only one bite at the cherry so to speak, I think I'll request a telephone hearing as that will be most convenient for me (and the Court) due to my disabilities but will give me a chance to clarify anything that isn't clear from my written application.

Claim against hospital, is the Trust the Defendant?