In this article, we will look at the principles which apply when you are deciding how best to investigate and progress a possible claim for personal injury compensation following an accident.
In particular, we will try to show how rules which apply to legally-aided cases can illustrate the most economic and efficient way to deal with personal injury claims.
In another article we have looked at how your solicitor gets paid in a legally-aided personal injury claim situation in Scotland.
If you consult a solicitor about a personal injury claim and you qualify for legal advice and assistance, the initial form of legal aid which applies to personal injury claims in Scotland, your solicitor can immediately increase the initial authorised expenditure of £95 –
- to £750, if the estimated value of the claim is between £3,000 and £10,000; or
- to £1,200, if the estimated value of the claim is over £10,000.
Legal aid or ‘no win-no fee’
Under present market conditions, it is highly unusual for a personal injury claim client to be taken on as a private client by a solicitor and have to pay for the work that is done as the file progresses.
Instead, the main ways of handling personal injury claims are either under legal aid or on a speculative (or ‘no win-no fee’) basis.
However, no matter how the file is being funded, as a general rule, your solicitor will approach the progression of your case in the same way they would do if they were dealing with a private client of sufficient but not abundant means. In other words, as if they were dealing with a client who could afford their services but who could not give the solicitor a free rein to carry out every conceivable line of investigation from the outset.
Normal questions to have at the start of a claim
When you consult a solicitor about a personal injury claim, the sorts of questions you will want to have answered at the outset include –
- What are the prospects for a successful outcome?
- What is the likely value of the claim? – and –
- How much is it likely to cost?
The ‘cost’ question still comes into play even in a ‘no win-no fee’ case because there may be a cost to you in the event that your claim is successful. You need to know at the outset what that cost might be and how it will be calculated. This is sometimes referred to as the ‘hidden cost’ of personal injury claims.
When the answers are not clear
While you cannot expect a categorical answer to any of these questions at a first meeting with your solicitor, if the answer to any of them is ‘I don’t know’ or ‘It depends’ that affects how your claim will be investigated and progressed.
If your solicitor’s answer to any of these questions is conditional on obtaining further information, a client paying privately for their solicitor’s work would not want to commit to authorising more expenditure than is necessary to make that investigation or obtain the particular information required.
Taking it a step further, if some piece of information is so critical that, without it, the rest is irrelevant or worthless, the private client is going to want to restrict any authority they give to obtaining that information first of all. An example would be where there is doubt about the date of your accident, especially if it might be more than 3 years ago. Most claims become time-barred after 3 years, so it would be important to establish the date of your accident as the top priority.
A solicitor running a personal injury claim under legal aid or ‘no win-no fee’ will apply the same principles to progressing the claim.
Liability and quantum
In a personal injury claim, you have two hurdles to overcome.
First of all, you have to prove liability. In other words, you must establish that the opposing party (or, typically, their insurers) have a legal obligation to pay compensation to you, in the circumstances.
Assuming you clear the first hurdle, the second hurdle is the question of the value of your claim.
Disputes on liability
If liability is disputed in your case (the ‘first hurdle’), your solicitor will want to concentrate on investigations which have a bearing on proving fault or breach of duty on the part of the opposing party.
You and your solicitor will want to think carefully about incurring the cost of obtaining a medical report – which will be relevant (in most cases) only to the value of the claim – until the issue of liability has been sorted out.
For example, say you break your leg as the result of a head on collision with another vehicle. You were the driver and it is alleged that, at the point of impact, your vehicle was on the wrong side of the road. In this case, your solicitor will probably want to concentrate investigation on where the likely point of impact was before looking in any great detail at matters which will affect the value of your broken leg. If you are proved to have been on the wrong side of the road at the time of the collision, it may be difficult to avoid the conclusion that the accident was entirely your fault.
Where you appear to have good prospects of success
Your case may appear to have a good chance of success on liability. This could be because, in a road traffic accident, the other driver has been convicted of careless driving, as a result of the accident.
In such circumstances, your solicitor may be able to proceed immediately to intimate a claim, by sending a letter to the party who was to blame for the accident.
If liability is admitted, the ‘first hurdle’ is cleared and the question of quantum (or valuation of the claim) is the only possible stumbling block in the way of a settlement. At that point, the question of obtaining a medical report can be addressed.
If liability is not admitted, on the other hand, it may be necessary to look for other evidence to support the claim on the issue of liability, first of all. It would not be reasonable to incur expense which would only be relevant to quantum at that stage.
Strong claim but no admission of liability
If your solicitor is satisfied that you have reasonable prospects of success on liability and there is no positive response to the intimation of claim, you may have no alternative other than to raise a court action to progress your claim to a successful conclusion.
In a legal aid case, where a court action is required, legal advice and assistance is not sufficient. You need a civil legal aid certificate and that requires a separate legal aid application.
A medical report is required as part of the documentation submitted with a civil application in a personal injuries case but it need only be from a GP, at that stage. A full medico-legal report will be required later but, by providing a GP report or even just copies of relevant entries from your medical records at that stage, costs can be minimised while still providing enough information to convince SLAB that you should get civil legal aid so you can raise a court action for personal injury compensation.
The situation is potentially different in a non-legal-aid case because you may decide to go straight to obtaining a medico-legal report and miss out the GP / medical records step.
The need to attempt negotiations if liability is admitted
If liability is admitted, the Scottish Legal Aid Board expect to see that some effort has been made to negotiate a settlement before preparation is made for a civil legal aid application.
In this article, we have considered some of the economic factors which will influence the way in which your solicitor investigates and progresses your claim for personal injury. We have tried to highlight the approaches which amount to best practice, when investigating personal injury claims.
- The principles are broadly the same irrespective of whether your claim is being funded privately, via legal aid or ‘no win-no fee’.
- Liability investigations tend to take priority over quantum investigations. If liability in your case is in dispute, your solicitor will not ignore investigations regarding the valuation of your claim entirely but they will concentrate their efforts on liability investigations.
- If your solicitor is satisfied that your claim has reasonable prospects of success, it may be necessary to raise a court action if either liability or quantum (or both) is in dispute.
How we can help
If you have any questions about this article or about any aspect of our personal injury claims services, please get in touch with us. You can contact Marie Morrison or Peter Brash on 01343 544077 or by sending us a Free Online Enquiry.
All initial enquiries are free of charge and without obligation.
We are always glad to receive questions because they help us to identify areas where the information on our website is lacking. It enables us to improve the information in existing articles or gives us ideas for future content we can publish on the website.
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