Claiming Compensation

Some common questions:

Q. Is it really worth my while seeing a Solicitor at all as I don’t want to waste time?

A. The simple answer is YES!

There are hundreds of accident victims who fail to claim compensation every year simply because they do not know their legal rights. A Solicitor will not think that you are wasting his or her time. Even if you think that the accident was your own fault you should seek legal advice. You may have a claim for compensation but not realise it.

Remember: Each solicitor in this Directory will provide a free initial interview - you have a lot to gain and very little to lose by approaching someone.

Q. There are so many Solicitors - which one should I choose?

A. This is probably the most important decision you have to make. We recommend that you use an expert in personal injury claims for spinal cord injury. All the solicitors listed in the Online Directory have demonstrated to SIA that they have experience of such claims. We do not recommend that you approach the solicitor who instructed when you last moved house, for example.

Distance need not be the deciding factor either, as most Solicitors will arrange to visit you at home if this is more convenient.

When you have selected a firm of Solicitors, phone up and ask to speak to either the contact name given here in the Directory, or the Head of the Personal Injury Department.

Remember: Don’t be afraid to ask questions. Here are some you could ask.

• How many spinal cord injury cases have you handled?
• What is the biggest claim you have ever settled?
• How many cases of this type have you taken to Court in the last 5 years?
• What were the results?
• Are you a member of the Law Society’s Personal Injury Panel?
• Have you completed a specialist SCI training course for Personal Injury Solicitors?

If you get unsatisfactory answers or you are unsure about the solicitor you have spoken to, call another one - don’t be afraid to shop around. You are the customer and there is no obligation to use the solicitor providing the first free interview. In fact, even if you are satisfied, it pays to approach more than one firm before you decide.

Remember: a claim is likely to take a few years to complete. You will be forming a relationship with your solicitor over a period of time, so it’s important you have someone you can trust.

Q. I am worried because my Solicitor has not spoken to me for some time. What should I do?

A. Do not be overly concerned if your Solicitor does not contact you every few weeks. It can take several months to prepare a medical report, for example, and it may be that this delay will hamper any further developments at present.

Many firms in this Directory have a "client care" policy - before giving instructions to a solicitor ask them about it and what standards they have in responding to their clients. You can also ask them to copy you all incoming and outgoing mail relating to the case if you feel you want to keep track of events.

If you are at all concerned then approach your Solicitor either by telephone or letter. If you fail to get a satisfactory response then write to the Senior Partner at the firm and express your concerns.

Remember: although your Solicitor is a busy person and has a lot of other clients, this is no excuse for ignoring you or not answering your questions. If you are not happy with your solicitor’s handling of your case you are free to change to another one.

Q. Someone told me that if my accident happened more than 3 years ago I cannot claim - is this true?

A. It is extremely important to seek expert legal advice as soon as is practicably possible following an accident.

As a basic rule, there is a three-year time limit, from the date of the accident, in which to bring a legal claim. So, for example, if your accident happened on 1 June 2004, your limitation date for making a claim is the 1 June 2007. But it isn’t sufficient to instruct a Solicitor just prior to this limitation date as the requirement is that proceedings must be issued at Court by this date. You therefore need to give the Solicitor as much time as possible prior to this third anniversary as there is considerable work involved before proceedings can be issued.

However, there are exceptions to this rule which will allow longer than three years. If, for example, a claim is being brought on behalf of a child or someone lacking mental capacity. The three-year time limit will also not begin to run until such time as you know that your injuries have been caused by the actions of someone else. If your accident happened abroad, or at sea or on an aeroplane then the limitation period may be shorter.

Remember: it is essential that you contact a solicitor at the earliest opportunity and even if you feel the limitation date may have passed.

Q. I was told that I would have to prove that someone had been negligent - what does this mean?

A. In order to succeed in a claim for damages (compensation) it is necessary to prove negligence. You need to show that the Defendant (the party responsible for your accident) has acted wrongfully and that this has caused your injury.

In an action for medical negligence (or clinical negligence) you must show that you have suffered an injury and that the injury has been caused by either an act or omission of a doctor or member of the nursing staff. In order to assess this, the Court will decide whether an appropriate level of skill was used which would reasonably be expected of a competent doctor or member of the nursing staff of equivalent seniority.

Q. What does the term contributory negligence mean?

A. In some instances the Court may decide that you have contributed to the injury by failing to take reasonable care. In this instance the Court will place a percentage figure on this amount of contributory negligence of anything between 10% - 100% and the overall settlement sum will be reduced accordingly. For example, if the Court were to award £1,000, but considered you to be 10% responsible for your injuries, you would only receive £900.

Q. I am worried that my claim will take forever.

A. It is not unusual for complex claims to take anywhere upwards of 3 years to complete, particularly where a severe spinal cord injury has occurred.

Where a Defendant admits liability (responsibility), it is usually possible to obtain what are referred to as interim payments in order to assist you to purchase equipment and other essentials whilst the claim is progressing. These sums would then be deducted from the final settlement sum.

Remember: it is always important to ensure that a full picture of your overall medical condition is known. In this way all eventualities can be built in the compensation package

Q. What will happen once I have instructed a Solicitor?

A. Naturally this will vary from claim to claim, although most Solicitors will follow a similar method.

• Firstly, your claim will be fully investigated. Your Solicitor will collect accident reports, witness statements and other relevant documents. They will then be able to advise you more fully on the likely success of your claim.
• A claim can then be made against the relevant body or person and their insurers will be contacted.
• Whilst some insurers will be quick to admit liability, others will not. Neither is it unusual for an insurer to initially turn down your claim and then change their mind as the claim develops.
• The vast majority of claims are settled before going to Court. However, some may ultimately proceed to trial. This should not put you off as your Solicitor will keep you fully informed and will prepare you for the trial in due course.

Remember: that it is the insurers themselves and not the person or body responsible for your accident who will pay the compensation. Do not be concerned if you have been involved in a road accident where the other person does not appear to be insured or if you were involved in a hit and run accident. In these circumstances your claim will be dealt with by the Motor Insurers’ Bureau. This is an organisation that nominates insurers to handle cases in these circumstances.

Q. I am worried that I will have to pay for my claim and I cannot afford that. Is it really worth my while to even approach a Solicitor?

A. You only need to worry if your claim fails. If it succeeds most of the costs will be recovered from the party at fault.

Remember: you should never be put off investigating a claim on the grounds of cost.

There are a number of ways of funding a claim and your Solicitor should discuss a number of different options with you. You should never assume that a claim has to be funded privately.

Public Funding (the Legal Aid Scheme)

In April 2000 public funding was withdrawn for the majority of personal injury cases. It has been retained for clinical negligence claims although only solicitors who are approved by the Legal Services Commission (the new name for the Legal Aid Board) and who have a Legal Services Franchise are allowed to offer a public funding service.

This means that if you think you have a claim involving clinical negligence, and you want to be advised with Public Funding, you need to ensure that the solicitor you instruct to investigate your case is able to offer this service. Look for this symbol in the Directory.

Remember: Public Funding is a loan. If you are successful in your claim for compensation, the Legal Services Commission may require you to make a contribution from your damages towards your legal costs if an insufficient amount is recovered from the Defendant. This is known as the Statutory Charge. If your case is not successful you can be ordered by the Court to contribute towards the other side’s costs. If you fail to pay any contributions towards the certificate this could lead to the certificate being discharged.

Conditional Fees – or No win, no fee agreements

Conditional Fee or 'no win, no fee' agreements have been available in personal injury cases for approximately seven years now.

The conditional fee agreement

When a solicitor and client enter into a conditional fee agreement the solicitor agrees to make no charge for his or her services if you lose your case. If you win your case, you will receive compensation from the Defendant together with money to pay your Solicitor’s basic costs and expenses. On entering a conditional fee agreement you agree to pay to the Solicitor a "success fee" which is an agreed percentage of the overall solicitors costs. This agreed percentage is made up of three elements;

1. a percentage for the risk of the solicitor not getting paid at all (if the case were lost)
2. a percentage for the length of time it will take for the case to be settled and
3. a percentage for the borrowing element if the solicitor funds the expenses of running your case as it proceed.

The amount of this success fee depends upon how complicated the case is, the risk that the solicitor takes in running the case and how long before it is likely to come to trial.

Although it used to be the case that the client had to pay all of the success fee, in April 2000 the law was changed to make the Defendant solely responsible for the risk element of the success fee. This was good news for claimants as the risk element is normally the highest element of the success fee.

After the event insurance

When the solicitor offers you a conditional fee agreement, he or she should generally offer to purchase insurance for you, to protect you from losing the claim and being responsible for having to pay the Defendants costs.

This Insurance is called 'after the event insurance' and there are many Insurers who offer this service.

It is very important that you check with the solicitor about the terms and conditions of the insurance product that he or she is offering as the benefits of the insurance differ widely.

Again, since April 2000 the law has changed to require the Defendant to reimburse the reasonable expense of after the event insurance at the end of the day if you win your claim.

'After the event' insurance premiums can be expensive – especially for clinical negligence claims. The cost of the premium is dependent upon the type of insurance purchased; the costs of a premium for a higher value road traffic accident claim are in the region of £5,000 for £100,000 worth of cover. Clinical negligence premiums are much more expensive and a similar level of cover can cost in the region of £20,000. It is always worth discussing the level of cover you need with your solicitor and whether a "better deal" can be obtained from an alternative insurer.

Remember: shop around and compare one or two different firms and the after the event insurance that they will offer you. Most solicitors offer after the event insurance with what are called deferred premiums which means that you will not have to pay a large sum of money in the first instance to buy the insurance. Further, with many deferred premium policies the Insurer will underwrite the cost of the premium if the claim is lost, or abandoned on the solicitors advice, without charge to the client. This is a very valuable safeguard. Others (and this is especially important in clinical negligence claims) can organise disbursement funding loans to pay the insurance premium.

Trades Union or Professional body

If you are a member of a Trades Union, or other Professional body, they may be willing to pay the legal costs although a Union will usually want to nominate one of its own Solicitors to act for you.

Legal Expenses Insurance

It is surprising how many people have legal expenses insurance with their household contents policy or vehicle insurance policy. Check whether you have this cover. Commonly legal expense insurance will provide between £25,000 – £50,000 worth of legal cover.

Most legal insurers have specific firms of solicitors they instruct, many of which do not have specific experience of handling spinal injury claims. However, under EU law a client is supposed to have total freedom in choosing a solicitor from the point at which Court proceeding are issued. However, more importantly there is a ruling of the Financial Services Ombudsman which states that in a complex claim a Legal Expense Insurer should allow its customers a choice of solicitors. This means that your Legal Expenses Insurance should pay for whichever firm you choose.

Private Fees

If you have a good claim you should be able to find a solicitor who will advise you under a 'no win, no fee' agreement. However, some solicitors may want to charge you for the initial investigative work before offering to enter into a conditional fee agreement with you, and this is especially so if you have a claim involving clinical negligence.

However, if your claim involves an accident (rather then a clinical negligence claim) then you should generally be able to find a solicitor from the SIA referral list who will advise you without charging you private fees and who will offer you a "no win no fee" agreement at the beginning of taking instructions.

Moreover, if you have a straightforward personal injury claim you should generally be able to find a solicitor who is able to fund the greater part of the expenses of running the case (for example medical expense fees) as it proceeds – either by way of the firm funding the expenses themselves or a disbursement funding package with a bank.

Remember: if you win your case you receive the bulk of your legal costs in addition to compensation.

If you cannot find a solicitor who will offer you a conditional fee agreement, or if you wish to pay the solicitor privately, your solicitor must tell you at the outset what the basis of charging you will be. Most, if not all, Solicitors charges are based upon the number of hours spent by the Solicitor on the case. Each Solicitor in turn has an hourly rate applicable to his work based on his expertise and experience. It would be usual to be billed periodically by what is referred to as an interim bill although by prior agreement your solicitor may agree to defer payment until settlement for a small interest charge. You must agree this beforehand. You may also be asked for money on account for costs which are about to be incurred. Solicitors used to charge an 'uplift’ on their hourly fee of at least 50% and it can go as high as 100%. However, it is now good practice for the solicitor to offer an inclusive hourly rate at the outset of the claim.

Remember: ask the solicitor to make a detailed budget of likely costs at each stage of the process, to help you work out how far you can afford to go.