Bringing a personal injury claim – what you should know before going ahead

Posted: 16/10/2017

Let’s face it, no one wants to be in the position where they are injured and have to bring a personal injury claim. While money can rarely, if ever, make up for what a person has suffered, people bring claims for a number of different reasons. Some need compensation to replace lost earnings, or to fund treatment while others are angry about what has happened to them, or want answers and acknowledgement of the injury they have suffered.

Regardless of how someone came to be in the position of looking at a claim and / or why they are doing it, there are some key questions that should be considered.

How long do I have to start my claim and when should I do so?

In most cases an individual has up to three years following an accident / injury to either conclude their claim or start court proceedings. There are some exceptions to this, primarily for children and those who lack capacity to conduct proceedings.

It is often the case that people don’t feel up to looking into a claim for a period of time after an accident, or that the true impact of their injuries does not become apparent immediately. It is therefore quite common for solicitors not to be instructed for several months after an accident and sometimes longer. While this is not necessarily a problem, claimants should bear in mind that the ability to gather evidence about the circumstances of an accident is greater the fresher the event is, and that often interim funding for rehabilitation can be obtained once a claim is instigated. These are just two reasons to consider starting proceedings earlier rather than later.

How do I find a good solicitor?

Personal injury solicitors have received bad press over the last decade or so because of the prevalence of cold calling and drumming up of claims by claims management organisations. Slowly this is being brought under control, but often potential claimants are bombarded by people who say that they are specialist personal injury solicitors.

Particularly where claims are going to be contested and / or involve serious injuries, getting a specialist, qualified solicitor on board is vital. This is someone who will know what they are doing and how to get the result needed. More importantly, it is someone who will not be ‘scared off’ by a defendant or advise you to settle for the first offer received.

There are a number of ways to ensure the solicitor you instruct does have the right expertise, including:

• contacting APIL (Association of Personal Injury Solicitors) or looking at its website – it has a thorough accreditation scheme in place;
• contacting the Law Society which has a list of accredited personal injury specialists;
• looking in The Legal 500 and / or Chambers UK legal directories which rank specialists according to reference and reputation.

Do not be tempted to go for the person who applies the most pressure or offers the best ‘deal’ on fees – you need the person with the right expertise.

Often people look for a local solicitor but it is worth bearing in mind that most solicitors will travel to see clients when needed and much of the claims process can be dealt with by email and telephone. 

What is a 'no win no fee' agreement?

A 'no win no fee' agreement, also known as a conditional fee agreement (CFA), is a method of funding a personal injury claim. Most personal injury solicitors will offer this option, although different firms will offer different terms. It can work well for claimants because they will not have to pay any costs up front and if they do not ultimately win the claim, they should have nothing to pay.

However, in return for deferring payment and taking the risk of not being paid, the law firm is likely to make some deductions at the end of the case for a success fee and may also recommend an insurance product to cover the risk of liability for experts and court fees, etc. The claimant is therefore likely to have some reduction in their damages in the event of a successful claim.

Can I change solicitors if I am not happy with my current solicitor(s)?

A claimant can and should choose the solicitor with whom they wish to work. Should that relationship break down during the claim, then the claimant can transfer their instructions to another firm. There will however need to be a discussion about costs incurred by the original firm and when they are payable. Some firms are sensible about transferring files where a client is unhappy, but others can take a hard approach on costs. Most firms will be prepared to talk to you about the possibility of transferring instructions. 

How much will my damages be?

This is usually difficult to assess until some time after the injury. Damages are made up of a sum for the compensation for your injury (which will depend on the nature and severity of injuries and symptoms, their impact and longevity) and a sum representing past financial losses due to the injury and anticipated future losses. The role of your solicitor is to obtain the evidence needed to correctly value your claim.

Will I have to go to court?

It is always possible that a case might end up in court, but in reality very few claims will go to trial. Most claims settle through negotiations with the other side. In a few cases where agreement cannot be reached on either liability for the injuries or the value of the claim, then court proceedings will go ahead.

If you have any further questions, please call our specialist personal injury team on freephone 0800 328 9545, or email us at pispecialist@penningtonslaw.com.

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