Resources from Billy

Directory of Terms

We've put together a directory of legal terms you may encounter during the litigation process. Click on a term to read a description of what it is.

ENS (Early Notification Scheme)

When a baby is thought to have suffered a brain injury from lack of oxygen at birth, hospitals are required to notify NHS Resolution.

This is known as the Early Notification Scheme or ENS. NHS Resolution then makes contact with the parents to find out more about what happened.

This is known as Early Intervention.

NHS Investigation

The maternity investigation programme was established in 2018 as part of the Healthcare Safety Investigation Branch (HSIB).

As of October 2022, we are now known as the Maternity and Newborn Safety Investigations (MNSI) programme and are hosted by the Care Quality Commission (CQC).

Gratuitous care

These are regular monthly payments made to parents usually following the settlement of the case, or sometimes during interim if required. They cover the care of the injured child and ongoing for the child's life.

It is Tax-free and not guaranteed for life. It should be reviewed and increased annually in line with inflation.

Past care payments

This is a one off payment made to the parents for the care given to the child over and above that of an unaffected child.

It is calculated at an hourly rate by the care expert. It can also but does not always include, equipment bought by parents, therapies paid for by parents, travel costs for hospital appointments, and hospital stays. It is not a life-changing amount or compensation for what the parent has lost financially in caring for a child.

Past Care amount is paid at settlement and should be paid directly to the parent. If parents have split up, the other parent can also claim part of the past care payment if they can prove they provided care for the child.  

In our world past care payments are the only amount parents will have for their old age or to be independent of the child. It is important to protect it and not allow it to be used without parents' permission.

"My Deputy and Case Manager decided they would use an advance of my past care amount to purchase a new car. I was furious when I discovered they had been discussing my past care without my permission and reminded them it was not part of any 'pot' or to be discussed in providing anything my child needed. I looked into PIP payments and managed to achieve high rate mobility for my child and used that instead".

Helen O'Neill-Nash - founder of Billys
Office of the Public Guardian (OPG)

Office of the Public Guardian (OPG) is supposed to monitor and audit the Court of Protection appointed Deputies.

Quantum / Interim

A period after admissions are made and where the full needs of the child are quantified so that full costs can be calculated for the child's life.

During Quantum, interim monies are paid to the Deputy (if one is appointed) to provide the care needs and fund the child to show what costs will be needed for life.

The monies paid out ultimately come from the overall funds at settlement.


A halt to the final settlement because the child may be quite young and their care needs may not be fully known.  Interim payments will be made and sometimes other  purchases, such as accommodation if proven needed. 

CFA (conditional fee arrangement) also known as no win, no fee

This is an option if preferred or if LA is declined.  It's important to understand that if a CFA does not succeed with the case, LA will not be granted. Always best to go with LA first as can then try again with a CFA, cannot do it the other way. 


This is the financial settlement that is agreed at the end of a case. Usually in two parts:

Lump sum - main amount made up of general damages, accommodation costs for life, loss of earnings, loss of pension, equipment costs for life, health care if appropriate for life, etc

Annuities or periodicals - an annual amount that is increased in line with inflation. Covers ‘running costs’ of a child's home (i.e. utilities, insurance, etc). Also covers care, therapies, and ongoing costs.

Funds are usually paid into the Deputies account  if appointed) within 28 days of the High Court Judge ‘rubber stamping’ (i.e. approving) financial settlement, minus any interim payments already paid out.

Legal Aid (LA)

Payments are made to the solicitor once they have presented the evidence of the initial review and any other evidence gathered.  A decision to grant LA is made depending on the strength of the case and the likelihood of succeeding.

LA is granted in tranches as the case progresses.  It can be withdrawn if Expert witness reports are deemed unsupportive.  If this occurs there is an option to try again with a solicitor offering a CFA.

Initial review by Solicitor

The review by a (usually senior midwife) of the statement given to the solicitor by the claimant to see if a case is possible.

Expert witness report

This is the report that is delivered by an expert witness. Many reports are generated by different experts throughout the life of a case. 


To have negligence admitted 3 facts must be established:

  1. Duty of care
  2. Breach of that duty/breach of care
  3. Causality

Duty of Care - Put simply, the person delivering the care must provide a reasonable level of care.  Trust automatically owes the child a duty of care. 

Breech of care - The standard of care fell below that which a reasonable practitioner would have given and the failure to give that standard of care resulted in harm

Causality - damage that is caused by the breach, and which is foreseeable.

All three parts of the 'chain of causation' must be present and proven for a successful case. In our experience, there can be appalling cases of breach of care yet no causality is proven.

Often after a letter of claim has been sent in by a legal team, The NHS Trust will accept or make admissions in two parts. Breech of care initially and then causality. These can be many months if not years apart.

Sometimes a Trust will only accept partial causality - the best care would still have had some of the same outcome - and agree on a percentage settlement with the family. ie they agreed their breech of care caused some but not all of the damage.

JSM – Joint Settlement Meeting

 A JSM can be arranged at any time to decide and agree on points of the case. Heads of claim, causation, interim figures, settlement figures etc. 

Initial JSM usually involves claimants solicitor, Barrister and experts to agree on causation and initial particulars of claim. 

Could then be a JSM to agree on the percentage offered prior to the Interim period. 

JSM could be called during the interim if needed to agree on accommodation needs if disputed. 

JSM after reports disclosed if no agreement reached. 

JSM at the end of interim to ratify heads of claim and figures. Aim of a JSM is to reach agreement prior to full trial. Most of our cases reach settlement at JSM i.e. ‘out of court settlement’. Then ‘rubber stamped’ or approved formally by the High Court Judge within 28 days.

Percentage settlement

When agreement is reached or a percentage is offered where the Defence admits partial liability and will therefore only pay this percentage of the overall compensation. 

The Claimant can either accept, negotiate or reject this percentage.  If rejected a Court date needs to be set for the level of admissions to be decided by a judge. 

Percentage is down to causality, defence will argue causality the most and will often admit breech of care but say a percentage of the damage caused could not have been avoided even with best practise care. 


Agreement by both sides on whether negligence occurred and whether this negligence caused the injury.  This can also involve a percentage admission. 100% admissions means the defence accepts full responsibility/ liability for breach of care and causality.

Expert Witness

An expert in one of the specialities associated with the case such as obstetrician, midwife, paediatrician or radiologist. Throughout a case many expert reports are involved and assessments with the child. Both from claimants side and defence. 

Case Manager

One definition found on Google is:

‘Case managers are healthcare professionals who serve as patient advocates to support, guide and coordinate care for patients, families and caregivers as they navigate their health and wellness journeys’.

In litigation, case managers are usually brought into use when admissions have been made and quantum or interim stage is entered. Within medical litigation Case Managers (CM) are paid for by the deputy or litigation solicitor if they are holding the claimants interim funds. 

The Purpose of a CM is to support the family in putting together a regime of care and therapist that will benefit the claiment. During the interim they help to prove costs the child will need for the rest of their life.

A CM should bring in various therapists as needed, in reality all cases appear to have the same - SALT, OT and carers. A good CM will support the family.

Definition of capacity

Capacity means the mental capacity to make decisions for themselves over the age of 16. The relevant legislation is the Mental Capacity Act 2005. 

The MCA has 5 principles at its core:

Principle 1 – A presumption of capacity

Principle 2 – The right to be supported when making decisions

Principle 3 – An unwise decision cannot be seen as a wrong decision

Principle 4 – Best interests must be at the heart of all decision making

Principle 5 – Any intervention must be with the least restriction possible

Professional Deputies also have paralegals working with them. They are at a lower pay rate and should be the first point of contact to prevent high bills to the child's funds.

Professional Deputy

A professional Court of Protection deputy is a solicitor who has been instructed to manage the affairs of someone who lacks the mental capacity to make some or all decisions themselves in relation to their property and affairs or their health and welfare.

Barrister or KC (Kings Council)

Solicitors are unable to present a case in court hence why a Barrister is needed to lead the case and present to a Judge. Their main role is to act as advocates in legal hearings, which means they stand in court and plead the case on behalf of their clients in front of a judge. 

As most negligence cases are settled ‘out of court’ the Barrister also manages negotiations with the Defence Barrister and legal team.

Para legal

Less qualified solicitor who manages day to day and admin queries. Paralegals carry out research, prepare legal documents and can give legal advice to clients. 

Litigation Solicitor

Solicitor who manages the legal case. 


This will usually be the hospital Trust where the birth occurred

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