Legal proceedings

In civil cases, it is up to the potential claimant (formerly called the plaintiff) to decide whether or not to begin legal proceedings. There is no compulsion on a person who has suffered personal injuries, or who has lost money through another party's breach of contract, to take legal action, and in the overwhelming majority of cases he does not in fact do so Most people (and all sensible people!) try to resolve their disagreements without going to law. After legal action has started there are still often negotiations "without prejudice" aimed at reaching a settlement, and these can continue even during the trial. Only about 1 per cent of civil actions started by the issue of a claim form end in a completed trial.

The factors likely to influence a potential claimant deciding whether to start proceedings are not easy to identify. The likelihood of success is presumably one factor: that will be determined not only by the legal strength of the case but by the quality of the available evidence. The potential gains and losses must also come into the calculation, so that the damages claimed (multiplied by a probability factor, and taking into account the other party's ability to pay) can be set against the potential costs of an unsuccessful action. But other less easily quantifiable elements may be present too – the desire to forget an unpleasant incident as quickly as possible, or a determination to exact revenge for a wrong suffered or to deter future misconduct, or a wish to preserve harmonious relationships even at some personal expense.

Studies have shown that the law of contract plays only a small part in determining dealings between businesses, and that most firms condone minor breaches of contract for the sake of the continued relationship between the parties. Similarly, an individual who suffers minor loss or damage through the carelessness of another may well decide that the hassle of legal action is not worth while. On the other hand, people have been known to sue others with whom they remained on excellent terms, knowing the insurers would pay any damages.

Even where a potential claimant decides that his losses cannot be ignored, it is unusual for him to start formal legal action immediately. The first step is generally to send a "solicitor's letter" (though it can be written by anyone, and need not follow any particular pattern) setting out the allegation and claiming appropriate compensation or other remedy. Where the claimant's case is strong (or where the defendant feels that the trouble, expense and possible adverse publicity of defending the case outweigh the cost of settlement) the claim may simply be met, either in full or at such lower level as the parties may agree.

Concurrent claims A claimant can sue more than one person for the same injuries. If she is successful then each of the defendants will be liable to pay the whole of any damages awarded, so that if one is unable to pay another may have to pay the whole amount, though the claimant will not get any more in total. If she is only partly successful – she may succeed against one defendant and fail against another, for example – she will still get her damages but will probably have to pay the costs of the party against whom she failed. The decision as to who to sue is one that needs some thought.

Robinson v Post Office [1974] 2 All ER 737, CA P slipped on a ladder at work because of oil on the step, and suffered a minor injury. He went to hospital and was given an anti-tetanus injection, as a result of which he contracted encephalitis due to an allergy of which he was previously unaware. On the facts, the Court of Appeal held that the hospital was negligent but not liable, since even the proper procedure would not have revealed the allergy. P's employers, on the other hand, were legally responsible for the encephalitis as well as for the minor injury: if a wrongdoer ought to foresee that as a result of his wrongful act the victim may require medical treatment then he is liable for the consequences of the treatment applied although he could not reasonably foresee those consequences.

Fitzgerald v Lane [1988] 2 All ER 961, HL A pedestrian P on a pelican crossing was struck by a car driven without due care, thrown into the path of another car also driven carelessly, and struck by that car too. There was no medical or scientific evidence to show which of the two cars had been the direct cause of P's injuries. The House of Lords (while disagreeing as to the assessment of damages) upheld the trial judge's decision that the two drivers should be jointly liable.

Wright v Lodge & Shepherd [1993] RTR 123, CA Mrs S was the driver of a Mini which broke down on an unlit dual carriageway in fog. A lorry driven by L, travelling at 60 mph, struck the Mini from behind and caused serious injuries to a passenger, Miss D, then swerved across the central reservation and struck two more cars, injuring W and killing K. L admitted liability but claimed a contribution from S. The Court of Appeal upheld the finding of Hobhouse J that S was 10 per cent responsible for the injuries suffered by D.

The Queen herself cannot be sued, but the Crown Proceedings Act 1946 allows most kinds of civil action to be brought against the Crown as a corporation; foreign governments may be sued in respect of ordinary commercial contracts but not in respect of their sovereign acts. Incorporated bodies, partnerships and trade unions can be sued in their own name, but an unincorporated association must name one or more officers or members as representative defendants.

Children and mental patients can be sued through a "guardian ad litem" (though it may be difficult to prove liability against them), and an action may be brought against the personal representatives of a deceased person even before probate has been granted. The claimant can also sue on two or more different legal bases in respect of the same damage: the courts are not eager to encourage this, but certainly condone it in appropriate cases.