First steps in a typical personal injury claim
Initial Assessment
Upon first being consulted we will take your detailed instructions. We will then give you our initial view on the prospects of success and indicate the likely time scale involved. We shall try to estimate the likely cost of your claim and advise you on your options for funding it. We will inform you of our terms and conditions of business and we will also advise you what steps should be taken.
Initial Action We will confirm in writing what was discussed and agreed upon at the initial interview and complete arrangements for the funding of your claim. We will then commence initial enquiries on your behalf and contact your opponent and all other interested parties. Thereafter we will report any significant developments and advise you throughout the claim generally. In particular, we will review the value of your claim and the prospects of your claim succeeding, notify you of any significant expenditure and monitor the costs that have been incurred and which we estimate will occur. If liability (i.e. blame for the injury) is not formally admitted, we will interview all relevant witnesses and prepare the evidence to support your case on liability. We will also prepare the evidence necessary to prove your claim for damages.
Negotiations
We will contact the opponents on a regular basis with a view to negotiating an early settlement of your claim, where this is appropriate. In some cases it is only possible to negotiate an admission of liability where, for example, an injury has yet to resolve or further evidence is awaited before the claim can be properly valued.
The Personal Injury Pre-Action Protocol
The CPR also impose new pre-action procedures which oblige both parties to a potential claim to co-operate with one another much earlier than before, even before proceedings have begun:
- by exchanging full information about the case,
- by discussing the issues involved,
- by exploring the possibility of settling the claim or at least limiting the issues in dispute, and
- by jointly instructing a single expert (for example a medical consultant) to report to the court, where appropriate.
The protocol is specifically intended to reduce the parties' reliance on the Court Service, by encouraging earlier settlement outside proceedings where possible. Furthermore, for those cases that cannot be settled in this way, it aims to accelerate and improve the case preparation before commencement of proceedings. The Protocol requires you to write a letter of claim to your opponent giving:
- a clear summary of the facts on which your claim is based,
- outlining the nature of your injuries,
- and summarising any financial loss that you have incurred, and
- requesting details of your opponent's insurers, if unknown.
You must give sufficient information to allow the Defendant and/or the insurers to commence investigations and to put a broad estimate of the claim. We will prepare this letter for you.Your opponent has 21 days in which to respond with details of the insurers. If your opponent replies within the 21-day period, then the insurers will have 3 months to investigate the claim. However, the insurer should, by the end of this 3-month period, state whether liability is admitted or denied. In the latter case, an explanation must be given. This procedure has the additional advantage of letting you know what your opponent's response to your claim will be that much earlier than under the previous civil justice regime. We will draft your letter of claim for you, in the same way that we will prepare your statement of case should it become necessary to commence proceedings.
Offers to settle made by your opponent
Once your opponent or the Defendant insurers have completed their investigation, they are likely to make a formal offer of settlement, if liability is admitted. This will have important consequences on your right to recover your legal costs. We will advise you fully as and when such an offer is made.
Letter before action
Before proceedings are issued, we will write to the opponent, to warn them of our intention to commence proceedings. Where appropriate, we will renew any discussions in an attempt to settle your claim. We shall try to avoid the need for proceedings, where possible. If this is not possible we shall also try to agree neutral issues in order to simplify the matters in dispute.
Before Proceedings are commenced
We will undertake a careful review of the evidence and advise you of the prospects of success. We will also advise you of the costs incurred to date, reassess the anticipated costs of the claim and inform you of the consequences to you of the claim failing. Your potential liability for your opponent's costs, should you lose, only begins with the issue of proceedings. We will obtain your permission before commencing proceedings.
Offers to settle by you
You can make a formal offer to settle to your opponent. You must state exactly what you will accept in compensation and you should be prepared to accept this if it is subsequently agreed. In doing so, you will increase your opponent's financial risk should this offer be declined and your claim proceed to a hearing. Whilst this may encourage an earlier settlement it may also reveal your minimum settlement figure.
Time Scales
Because of the strict time limits imposed by the Court once proceedings have started, it is important that most of our enquiries and preparations are undertaken prior to issuing proceedings. This will reduce the risk that part or all of your claim will not be disallowed due to a failure to adhere to the automatic directions.