If you have had an accident you may be able to claim compensation. These notes set out how your claim will progress and the important stages and dates that you will need to remember. It will also answer some of your questions. Please keep this document in a safe place as it will be referred to throughout this case.
In our legal system, a claimant must prove his or her case by producing appropriate evidence before the court to substantiate each fact and matter alleged. Although most personal injury claims are settled before court proceedings are even commenced, it is always sensible to work on the basis that you may have to proceed to a trial. At a trial you will be expected to produce evidence to support each and every fact in support of your claim.
The task of preparing your evidence should be done right at the start of your claim. the earlier you start preparing your evidence, the better; whilst your own memory and those of your witnesses recollections are still vivid. A court is likely to give greater weight to a witness statement made close to the events it concerns than one prepared months or even years later.
It is necessary to prove your case "on the balance of probabilities" (in other words, to show that what you allege is more likely to be the case than not).
To have a successful claim you must show that the accident was someone else's fault.
In some cases it is very difficult to decide who was at fault and whether that can be shown to the satisfaction of the Court. We will discuss with you the likely chances of success. In some cases it can be difficult to decide who was wrong.
To succeed in recovering compensation for personal injury and/or loss arising out of an accident, it is necessary to establish the following:
- that a common law or statutory duty of care was owed to you at the material time, and
- that your opponent, or someone for whom they are responsible, failed in that duty to you, and
- that this breach of duty caused your injury and loss
- that your injury or loss was of a kind that which the ordinary man would consider to be the reasonably foreseeable result of such a breach of duty.
In most cases you will sue the individual who caused the accident. However, in some cases if the accident was caused by an employee of a company it may be necessary to sue the employer or company involved. Although the other party (called "the defendant" in legal proceedings) will appear on the Court paperwork, it is usual for their Insurers to actually pay the damages and your costs if you are successful. It is not normally the defendant personally who has to pay any monies that you are awarded.
You should bring a claim for personal injuries within three years of the date of the accident. If a claim is not started at the Court within that period it will not be possible to go ahead with your claim. It is therefore important that you provide us with all the relevant information as quickly as possible.
In certain cases there may be a longer period in which you can bring a claim, if for example you were not aware that the injury was caused by the accident until some time after the accident. Such cases as that will need to be carefully discussed with us to determine whether you can proceed with your case.
Proving the above facts usually involves the following:-
This involves preparing a detailed statement by you and any other witnesses who can support your case. These could include independent witnesses such as ordinary members of the public, work colleagues or the Police. It is necessary to prepare written statements of this evidence, and those statements will usually be disclosed to your opponents and read by the Judge should your case proceed to a trial. It is important that these statements should be prepared as quickly as possible as they tend to be more readily accepted if prepared shortly after the accident/incident.
In personal injury claims it is usually quite helpful for you to keep a diary of how your injury affects your day to day life, as this will be very helpful in preparing your statement. If you have any injuries which are visible it is helpful if you could take photographs. You should also keep details of time spent by your family and friends assisting you or caring for you. We will prepare a statement which will deal with all aspects of your claim.
Documents include letters, memos, photographs and any other written or recorded items. These examples are not exhaustive and you may have other relevant documents.
You should provide all the documentation that you have. At a certain stage in the proceedings it is likely that you will be ordered to give disclosure of documentation. You will be required to disclose documents on which you rely and documents which adversely effect your case as well as those which adversely effect another party's case or even support another party's case. You will be required to sign a declaration to confirm that you have made a reasonable search and that you have disclosed all the relevant documents. It is therefore sensible at this stage to let me have any documents that you have relating to the claim so that I can decide whether they are relevant.
If you have had an accident at work, relevant documents will include the accident report book, risk assessment records, correspondence with your employer and your contract of employment.
In a road accident claim relevant documents can include the police accident report, if available, possibly an accident damage report, invoice or 2 or 3 alternative quotations for the accident damage repairs.
All personal injury claims must be supported by a medical report to prove that the accident has caused the injury or symptoms complained of. Most road accident claims do not require the evidence of a non-medical expert; only rarely will a court allow a party to rely upon an accident reconstruction report. It is for the court to decide what happened at the time of the accident by hearing the parties involved and considering the other material evidence before it.
1. The initial fact gathering. We may ask you to complete some questionnaires, we then interview you to clarify the basis facts and issues concerning your claim.
2. We collect the evidence needed to prove your case. This usually includes interviewing witnesses; preparing statements; obtaining treatment, medical, employment and police records; and instructing medical consultants and other experts whose specialist opinion we need to support your claim.
Eventually it will be necessary to exchange our evidence to your opponent if we are to encourage a settlement or to pursue your claim to a hearing. This can either involve single exchange of all relevant evidence with your opponent, or a series of mutual exchanges of different categories or evidence.
Under the Civil Procedure Rules 1998, we are required to discuss matters with your opponents much earlier, in order to encourage negotiations to settle your claim and to ensure that both parties are better prepared, should it become necessary to commence proceedings.
The issue of Court proceedings is seen as a last resort. If Court proceedings are issued the Judge is likely to take control of how the case is conducted. The Judges have wide ranging powers and their decisions are unpredictable. However, they will enforce time limits strictly and will penalise either side if the Judge feels steps taken to be unreasonable or out of proportion to what is at stake.
The litigation process should be an open process and parties will be expected to explore all reasonable approaches to negotiate or mediation. Failure to act reasonably may result in a party being penalised in costs.
We may have to advise you against steps you wish us to take if we consider the Court would consider these steps inappropriate.
If your opponents are not prepared to agree to our proposals for settlement but we remain of the view it would be to your advantage to continue the negotiations on your behalf, we will consider the possibility of alternative dispute resolution (ADR). ADR will involve the appointment of an independent mediator and an informal meeting with the opponents. You would have to attend that meeting. The mediator's role is to find areas of agreement between the parties and to encourage a fair settlement without involving the formality, cost and time of a formal court hearing. Mediation can take place between or after the start of proceedings. A pre action protocol has been set which includes a requirement to attempt to agree to the appointment of jointly instructed single experts between the parties. The pre-action protocol is explained in more detail below.
To help progress personal injury claims rules have been introduced to set out how cases should be progressed before proceedings are issued. The steps in the Protocol in the Rules (the Protocol) are as follows:-
1. The solicitor for the person bringing the claim sends to the Defendant or their insurers a letter containing a summary of the facts on which the claim is based together with an indication of the nature of any injury suffered and of any financial loss incurred. If the solicitor does not have details of the insurer this letter will ask for them. Providing that letter contains all the appropriate information the Defendant (or their insurers) should reply within 21 calendar days of the date of posting of the letter. If they do not do so you will be entitled to issue proceedings (see below).
2. Providing the Defendants or their insurers do respond to the letter they will have a maximum of 3 months from the date of their acknowledgment to investigate the matter. No later than the end of the 3 month period the Defendant or the insurer shall write back to us informing us whether liability is denied and if so why they are denying liability. If the Defendant denies liability they will have to disclose with the letter documents which are relevant to your case.
3. Where liability is admitted the Defendant will be bound by this admission for all claims where total value is £15,000.00 or less.
4. Under the Rules we are required to send to the other side as soon as possible a Schedule of your out of pocket expenses with documents (where available) confirming the amounts. You should therefore let us have those details as soon as possible.
The Rules also govern the instruction of experts. I will provide the other side with details of experts that I would propose to instruct. They will then have 14 days to decide whether they wish to object to them. If they do not object I will instruct the expert of my choice. If an expert cannot be agreed then the Court will decide in due course whether the parties have acted reasonably.
If there is no objection to the instruction of the expert that we chose the other party will be unlikely to produce his own expert evidence at the Trial.
Before proceedings can be issued we need to get a medical report setting out your injuries. This report should set out what has happened to you and confirm that the injuries were caused by the accident. We also need a list of the money that you have paid out such as prescription charges, travel costs and any future loss. It will depend on how badly injured you are what you will be able to claim. It can range from the purchase of pain killers to substantial loss of earnings or cost of care.
In some complicated cases we may wish to obtain expert evidence from an engineer to see who caused the accident. It is therefore important to consult us well before the end of the 3 year time limit.
We will arrange to lodge with the Court a document which sets out the legal basis for your claim and sets out the injuries and monies you have or will have to spend. This document will be brief and will not be very detailed. All the detailed information will be dealt with in your statement which is referred to below. The Court needs the medical report and the list of expenses to be sent at the same time. Usually, the Court will then arrange for those documents to be sent to the defendant or the defendant's solicitors or representative.
The other party then has 14 or 28 days from the date he receives the court documentation to put in an Acknowledgment or a Defence. A defence is usually a document which sets out whether the claim is disputed or whether the defendant is prepared to admit the claim subject to certain conditions.
The Court will usually send me and your opponents a questionnaire to complete. This questionnaire has to be returned to the Court by the specified date, usually 14 days after receipt. The Judge will consider the completed questionnaire and will either allocate your case to an appropriate Track (see below) or proceed to an Assessment of Damages hearing. Alternatively the Court may list the matter for a Disposal Hearing. Costs of a Disposal Hearing are at the complete discretion of the Court.
Only personal injury cases which are worth less than £1,000.00 for the personal injury element and £5,000.00 for the out of pocket expenses will be referred to the Small Claims Track. The amount allowed for legal fees on the Small Claims Track is very limited.
Claims which are worth up to £15,000.00 will usually be allocated to the Fast Track. There are set Directions for the Fast Track and usually a Court date will be given within approximately 30 weeks.
This is a Track for cases which are worth more than £15,000.00 and are likely to be complicated. The Directions given will vary from case to case and you will be advised of the position if your case is a Multi Track case.
Whichever Track your case is allocated to very strict timetables will be put in place for the progress of your claim. It is therefore very important that you respond to correspondence quickly and provide any information and cheques for Court fees quickly. If the time limits are not complied with it is likely that the Court will make Costs Orders to penalise you.
In most cases the claim will be settled before going to Court. We will discuss with you any offers of settlement that are made with you and discuss the implications. If your case does proceed to a Court hearing then it is usual for a barrister who specialises in Court work to represent your case at trial. Usually a conference takes place before the hearing so that you can meet the barrister in advance. It will be explained to you what will happen at the Court case.
We will explain to you the methods of charging and whether or not you can claim for Legal Aid. Usually, if you are successful the Court will order the other side pay your costs. However, this is unlikely to represent the full amount of costs that have been incurred. For further information see the cost section.
It is important that you give us full details of your case so that we can advise you properly.
The amount of compensation you will receive depends on the injuries you suffer and the effect that they have on your life. The Court will look at previous cases which are similar to yours when considering the amount of damages. Usually interest 2% per year is awarded on these damages from the date of the issue of proceedings. Your claim may be made up of one or more of the following:-
These are monies that you receive for your pain and suffering and loss of amenity. They are intended to compensate you for your injury and the pain and suffering. Your loss of amenity will be such things as an inability to play sport following the accident. Awards of damages in this country are much lower than in America.
These are the expenses that you have as a result of your injury before the settlement or trial date. They may include things like travelling expenses, prescription charges, damages to property and loss of earnings. You will be able to claim interest on these items currently approximately 3.5% per annum. You are under a duty to keep these losses as low as possible. If your claims are excessive you may not recover all of the expenses. It is easy to forget or lose track of all your expenses and it is therefore important to keep detailed records of all these expenses. You will usually be given sheets to record expenses and details of care given.
These will relate to the loss that it is anticipated that you will suffer. If for example you are unable to work because of the injury you will have a claim for future loss of earnings. This subject is very complicated and we will explain it to you if it is relevant to your case.
Damages are designed to compensate an injured party; a court will not allow a party to profit from the claim (i.e. to be put in a better position than before the injury).
There are a number of principles which the court applies to limit the extent of a party's liability.
You have a duty to mitigate your loss. Which means that you must take reasonable steps to minimise your losses. For example: if your injury has prevented you from working, you must take reasonable steps to resume your pre-accident employment or to obtain suitable alternative employment as soon as reasonably possible.
Some loss is deemed, as a matter of public policy, to be too remote in consequence of the injury to be actionable.
Damages will generally only be awarded where there is a clear chain of causation, linking the negligent act or breach of statutory duty to the loss or harm suffered.
Under the Social Security (Recovery of Benefits) Act 1997, most state benefits received as a result of your injury are repayable to the Department of Social Security. Benefit recoupment is managed by a department called the Compensation Recoveries Unit (CRU). The CRU issue a certificate of benefits received which the Defendant uses to assess the relevant sum to be deducted from your compensation. General damages are exempted from these recoupment provisions. The regulations for recovery of benefits are complex and will be explained to you as and when the need arises.
If you are deemed to be partly to blame for the accident, your entitlement to compensation (general or special damages) will be reduced to take into account the extent of your culpability (i.e. to reflect your own responsibility for the accident). For example, where a court decides that you were equally to blame for the accident then it is likely to reduce the total amount of your award by as much as a half.
We shall advise you what kind of damages you are entitled to, and their likely amount.
The length that the case takes will depend on how difficult the case is. As a general guideline even relatively minor whiplash injuries will usually take at least 12 months to resolve. Some more minor claims can be dealt with in a shorter period. If your claim is a serious personal injury claim it can take two to three years and possibly longer for the damages to come through.
This firm must not reveal confidential information about your case to other people. However if someone is helping to fund your case such as an insurer we may be obliged to give details of your case to them.
If any of the above is unclear or you wish to obtain further information, then we suggest that you write down the questions that you wish to ask us at your next appointment.
