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Will I win my personal injury claim?

Author: Diane Parker

As an injured person you may have already received a phone call advising your claim could be worth thousands. If this is the case, chances are your claim was a road traffic accident, probably where you or a family member was the policy holder.

If you’ve had a different kind of accident, you’ve been injured in a shop or at work for example, any call you’re likely to have received is probably just coincidental.

Claim values

Interestingly, whether or not you win your claim might increasingly depend on its likely value. This is due to changes in the law introduced in 2013, fixing the legal costs for claimants (the injured person) if the claim is worth less than £25,000.

Cases worth more than £25,000 are often approached pragmatically by the insurance company who is responsible for paying the claim. Cases they’re likely to be found responsible for are usually concluded at an early stage, or at least reduced to one or two issues of contention.

Contesting claims

Conversely, in the cases where costs are now fixed, we are experiencing some of the most outrageous defendant behaviour that I’ve seen in almost 30 years of practice. Before claimants legal costs were fixed, defendants could choose to contest claims, but if they were unsuccessful then they’d be required to pay the costs.

Now that costs are fixed, then no matter how petty or weak the point, defendants are taking them because not only does it not cost any more to do so, because the burden of proving the case is on the claimant, whose legal team are constrained by the fixed costs and can no longer spend what is needed on experts, evidence gathering etc, then more cases are proceeding to trail and more cases are being abandoned at the earlier stages as simply uneconomic.

Some recent examples include:

  1. A case where the claimant visited her GP a few days after the accident and the CP has made a note that she fell “a few weeks back” by mistake; this case is on its way to trial on that single issue.
  2. An elderly cyclist who sustained chest injuries falling off his bicycle due to an uneven road surface and developed pneumonia; we’re on our way to trail simply because the defendant won’t accept that the pneumonia was consequent on the chest all injury.
  3. A student injured in a mechanical workshop when a fellow student lowered the car he was working underneath onto his hand, settled days before the trial.
  4. A passenger in a taxi who was injured; her case went to trial (she won) because the insurers of the taxi driver wouldn’t accept liability.

No win no fee

All of these cases are run by Atherton Godfrey on a ‘no win no fee’ basis and when all we recover are the set fixed costs for the case, plus a percentage of the client’s damages, there is a limit to the resources we can devote to cases which normally would have been settled at a much earlier stage.

There is also a much greater need for us to be able to rely on our client being able to stand up to cross-examination in a trial situation. Conversely, insurance companies (99.9% of cases involve insured defendants) have unlimited resources and are clearly prepared to expend the money saved on paying claimant legal costs, not on reducing premiums for their policy holders, but on paying their own solicitors to run unwinnable cases in the hope that a certain number will fall by the wayside.