Len Dastard's guide to pursuing a personal injury claim – Part 2
Hola, my swarm of delicioso amor vuela! Your eye does not deceive you! It is the return of the now legendary Len Dastard, the retired Mexican wrestler-turned litigation executive that mothers everywhere warn their daughters never to fall onto the moving penis of. You find me in celebratory mood, having just invented a new wrestling throwdown called the Rompeloma. If only it was still '73 and I was squaring up to Juan Devastatos, the Caped Murderer of Death and Kittens. A Rompeloma would have made all the difference to rookie wrestler Len. Still, I have tequila and tacos now, so who really won, Juan? Tell me.
Anyway. You may remember my first award winning article* on pursuing a claim for personal injury. For the lazy readers, here it is.
If you instruct a solicitor they will usually send to the insurer a “Claims Notification Form” which details your claim. The insurer then has 15 working days in which to respond. If the insurer admits liability then there will be the need to obtain a medical report to ascertain the extent of your injuries. This report will then be sent to you for you to approve. At this stage the solicitor will usually get information from you regarding other losses (travel, wages etc). Once this has been passed back to your solicitor they will propose a settlement figure to the insurer. The insurer then has 15 working days to either accept your offer or make a counter offer.
If you cannot reach an agreement with the insurer then the solicitor will make an application to the court to determine the amount of compensation that you are entitled to.
Where the insurer does not admit liability the claim will continue under the appropriate stage of the Pre Act Protocol. We have looked at the Pre Action Protocol before but briefly this is the procedure determined by the court to ensure matters are dealt with efficiently.
If the insurer does not admit liability the onus is on them to give reasons why and provide evidence. Any evidence will be considered in detail by your solicitor and usually they will take instructions from you to rebut the assertions made. As long as your solicitor is satisfied that your claim has a chance of success at more than 51% they will usually
continue to pursue the claim on your behalf.
If you are unable to agree a figure for your injuries then there will be the need for formal court action. The relevant documents (Claim Form and Particulars of Claim) will be completed by your solicitor and filed at the court. Your opponent then has 28 days to:
• Admit your claim and pay compensation.
• Admit your claim but dispute the amount of compensation; or
• Deny your claim and therefore refuse compensation.
The court will then liaise with the parties to try and work towards trial.
The following will be directed by the court to happen before trial:
• Exchange witness statements.
• Provide details of expenses.
• Question medical expert.
• Give an approximate timetable for trial.
Most claims will settle before trial as the parties will appreciate the litigation risk. In the event that the case proceeds to trial your case will be put to the Judge by a Barrister. Once the Judge has heard all of the evidence they will then consider the case before giving his decision. The possible outcomes are:
• Find in your favour.
• Find in your opponents favour; or
• The Judge apportions the blame and subsequently lowers your compensation claim.
This is a very brief overview of the process and the usual timescale for the conclusion of the claim can be anything from 9 months (whiplash etc) to 5 years for the more serious head injuries.
Please get in contact with us at [email protected] if you have any questions or any issue that you would like us to look at for you. Until then, adios.