I get asked this question all the time, so I thought it may be of use to try and explain how to ensure that you have the right legal representation in the event of being involved in a crash. If someone has a query they would like to discuss away from a public forum, then you are welcome to PM me.
Sorry for it being on the long side, but I have tried to cover a lot.
It is an unfortunate fact of life, but as members of the human race, every time we step out of our front door, whether it be as a driver/rider, as a pedestrian or at work, we run the risk of being injured quite often through no fault of our own.
Accidents will happen. It has been known for someone simply sitting at a desk looking at a computer screen all day can cause injury.
But it is knowing who to turn to after an accident has occurred that seems to cause people much anxiety. If you think that someone or some organisation may be at fault how can you bring a claim?
Many people are deterred from going to a solicitor after an accident because they imagine that he/she will try and tie them up in legal jargon, official red tape and charge them a fortune for the privilege.
Times are changing though and many solicitors are now living in the 21st rather than the 19th century. The way the public are treated now is very different to a few years ago.
This article will attempt to explain why a solicitor is the best person to turn to for help after an accident (and who is not the best), what information the solicitor will need to be able to assist you, and the procedure that will be used to try and win you proper compensation.
Who not to use? Over the past few years a number of “accident management” firms have sprung up around the country. So many in fact that you start to lose track of them all. They all sound the same. And they promise big results for an injured person and spend large sums on TV and other advertising. These are not cheap and have to be recovered somewhere. Guess who from?
The problem with these types of organisation is that in the main they are nothing more than unqualified agents working for an insurance commission or what is called an introduction fee. It is not unknown for an injured person to be referred by these organisations to a solicitor who has little or inadequate experience in the field of personal injury, (in fact I have just heard a story of someone in Wales who was referredto a Solicitor whose primary business was convyancing and they did a bit of injury work for pocket money).
Then come the scams. Some accident management firms have been known to
advise the hiring of a replacement vehicle after a road traffic crash only for the claimant to be confronted with a massive debt at the conclusion of the case because the hire vehicle charges were forgotten in the final claim, the costs were disputed for various but justifiable reasons, or couldn’t be recovered from the insurance company for the same reasons. And surprise surprise many get a kick back from the company concerned. At your expense.
These problems have been particularly noticeable in motorcycle accident cases. For some reason they always seem to get the worst deal!
A solicitor is the best person to turn to, but who to choose? Not all solicitors are the same. How do you know?
Make sure that in the event of you having been injured that the solicitor you choose is a member of the Law Society’s specialist personal injury panel. Ask them!
This panel is carefully vetted by the Law Society for the appropriate experience. If they are not on it, don’t use them. They should at the very least belong to The Association of Personal Injury Lawyers or the College of Personal Injury Law, ideally they may also be members of the Spinal Injuries Association specialist panel (important if you have suffered injury to the spine), the Motor Accident Solicitors Society or the Headway Specialist Panel (sadly bikers for example risk head injury more than motorists) to name but a few. So don’t be afraid to ask what associations the solicitors belong to, what was their biggest award for a
similar claim, what experience do they have in the area you wish to claim. If they are genuine, they will be happy to supply this information.
Many solicitors work on a “no win, no fee” basis so should you be unfortunate enough to lose your case, then there will be no hidden surprises waiting round the corner. If they are not able to offer you a no win no fee agreement (or conditional fee agreement to give it its proper title), don’t use them. They should be putting their money where their mouth is and not get paid if they don’t win your case for you.
Watch deductions if you do win. Some might be unavoidable, for example law firms are now permitted to take up to 25% of your compensation by way of what is called a success fee, Until a few years ago, the success fee was charhed to the defendants and the percentage was detwrmined by the seriousness and difficulty the case posed. But in order to reduce legal costs, the success fee against the defendants was dropped and law firms were told that they could take a percentage of their clients compensation up to a maximum of 25%. Some firms don’t take the full percentage, but if they do, it is perfectly legal.
Others costs can arise and come from taking out excessive insurance or loans that you don’t need. These are often schemes to get money out of you that you don’t need to spend. It shouldn’t happen, but some firms still find ways to get you to pay fees up front.
Some fences have been mended but for my money these organisations are best avoided, but near in mnd that many law firms are also now owned by
insurance companies and so will try and force you to use one of their panel solicitors if you have a legal expenses policy. Insurers can no longer force you to use their in house firms and must tell you that you are entitled to use a law firm of your choice.
Most importantly, a solicitor can advise you as to whether your claim is worth pursuing in the first place. What is the point of spending hours on a claim, waiting for months to sort it out only to get a pittance at the end of the day? Or where the only winner is the claims management company?
So having decided to appoint a specialist solicitor to fight your case, what can you do to ease the claims process?
Well firstly, by providing as much information as you can, such as times, dates, exact locations and the details of any independent witnesses.
Photographs are always a good source of information even some weeks after the event, as they can give your solicitor a good understanding of the location and its geography. If you are photographing a rut or hole in the road (or similar), give a scale by putting a 12” ruler alongside.
Write down as much detail as you can as soon after the event as possible. As time passes, the memory tends to fade, and some important factors may be forgotten.
If you are unable to write yourself (in hospital maybe) then ask someone to write it down for you. The solicitor should come out and see you in hospital so this should not be a problem.
Remember that it is far better to have too much information, than not enough.
Keep a copy of all relevant documents, letters or instructions you may have received. Paperwork can often throw up extra information that may be beneficial.
Pass on all correspondence from other parties, for example insurance company letters, letters from the Police or from the third party. Do not enter into correspondence yourself as you may say something which can be later used against you.
Keep a record of any expenditure you may incur. Telephone calls, travelling costs, postage, repair estimates and any other out of pocket expenses are all claimable. The better the record, the less likely the claim will be disputed.
If the police have been involved, for example at the scene of a Road Traffic Accident, then make a note of their name, number and station and if possible a contact number. Most attending policemen will be sympathetic.
Keep all your previous payslips. If you have been off work for some time as a result of your injuries, then you will need to prove loss of earnings, and your payslips will do this for you.
Be patient. Some claims can take years to settle if there is serious injury involved. On the other hand if you have made as full a recovery as you are going to, the delay should not be significant, although 1 year as a minimum from the date the claim procedure commences is not unreasonable. Some solicitors are more efficient than others in this area. Try to get a recommendation as this is usually the best way to find out.
So how will your solicitor start going about making the claim for you?
Well there are two different ways. One is that you complete a simple questionnaire about the accident and the subsequent injuries. This document will then be assessed by your solicitor who will make a decision as to whether the claim is worth pursuing. The other way is for the solicitor to conduct a personal interview or consultation (make sure there is no charge) where he/she will ask you all the relevant questions and then make a decision based on the answers provided. If you are local to the solicitor, a meeting at the solicitors office is a good idea as you can assess whether you can put your trust both in the firm (what are the offices like for example?) and the individual. Of course if you are housebound you will not be able to do this but your solicitor should come to you in these circumstances.
Some law firms now also use online enquiry forms and this can be another viable option.
One of the first things that will be looked at is how long ago the accident happened. If it was over 3 years ago there could be a problem as generally you must bring a claim within this period. This is called the statute of limitation and proceedings must be commenced within 3 years from date of injury or date of knowledge whichever is the sooner. This does not apply to children or people who are incapable of managing their own affairs, for example people suffering from a brain injury.
The other aspect that has to be looked at relates to the severity of the injury because a couple of years ago claims were divided into 2 categories.
Fast track cases which are for claims valued at up to a maximum of £25,000 and legal fees are currently capped at about £800 which is likely to drop to £500 in 2018. These fixed costs were introduced to try and reduce egal costs in cases which were lower value and where
liability was not likely to be disputed, and then we have Multi Track which is for claims valued at over £25,000 and so really applies to serious and catastrophic imjury cases
Once it has been decided to pursue the claim, the solicitor will write to the third party holding them responsible for the accident. In most cases this letter will be passed on to their insurance company who will then act on behalf of the person being held liable. Any future correspondence will then be conducted between the solicitor and the insurance company or the insurance companies appointed solicitor. You don’t get involved and are spared any hassle.
If an official such as a police officer has prepared a report, then the
solicitor will pay a fee and a copy of the report will be obtained, but this will not be released until the file has been closed and the investigation completed which can take several months. Known independentwitnesses will also be contacted and asked to make a statement. The most important issue is to find out what caused the accident. This is where the accident investigator comes in.
Some solicitors firms have these (very useful!) people in house. Ask!
Often they will be ex traffic police themselves so will speak the same language as the attending officers and will have a massive amount of first hand accident attendance and reconstruction experience.
At some stage you may need to be examined by a doctor so that the level of injury or disability can be assessed. This will generally only take place once your symptoms have settled, you have made a full recovery or you have recovered as best as you are likely to.
After all the evidence has been gathered, your solicitor will then start to negotiate for an admission of liability and a settlement. In some cases where the facts cannot be disputed (although many insurance companies still try!) the question of liability is often admitted, but like all businesses, the insurance company will want to minimise the expense and will therefore fight tooth and nail to limit the amount theypay out.
Where liability is contested, your solicitor will try and bring pressure to bear and resolve the matter. Unfortunately though, some cases (actually very few) end up in Court where a judge will decide who is liable, and will decide what the value of the injury is. This is where your solicitor can really earn his corn by preparing and presenting your claim in a knowledgeable, professional and efficient manner.
Some cases can take years to settle particularly where there have been
serious injuries. If the case is settled too quickly then the level of compensation may not reflect potential medical problems that may occur later on in life, and if the case is settled too quickly then the chances are that it will have been under valued, but the problem is that you cannot then go back later down the line and ask for more money if you have agreed to and signed a full and final settlement. Your only option is to then sue for professional negligence and by and large start
the case all over again
For example a broken bone which heals seemingly without complication as a
young person, may lead to more serious problems like arthritis later on. You may need a knee or hip replacement later in life. This can be claimed for as part of your claim
Also, once liability has been admitted, the defendants have a duty to mitigate their losses and assist you maybe get back to work and so are obligated to foot the bill for any private medical treatment that may facilitate this aspect of your case.
Your solicitor should be able to advise you how long the matter will take to resolve. (If they suggest anything under 12 months, run away from them) If there is going to be a delay but liability is admitted, in serious cases the solicitor can ask for and obtain an “interim payment” for you to ensure that you are not financially disadvantaged pending settlement of the claim, and then these interim payments are deducted in your fina settlement payment, but will still form part of
the overall settement/.
So should you be unfortunate enough to be injured as a result of any type of accident, whether it be at work, on the road or in any case where blame may be apportioned, then think of your specialist solicitor as the 5th emergency service. In a changing world they really are there to help.
I hope you find this to be of help in the unfortunate event you need assistance. I cannot cover everything, but I hope it gives you an idea.
You are always welcome to PM me if you want further advice.
