Last time I discussed the basics of when and why you may be able to bring a claim for personal injury or clinical negligence. You’ll find the blog here. This time, I want to talk about why you may have difficulty in finding a solicitor to take on your case, how to choose a solicitor and how a claim may be funded.
Why won’t a solicitor take on my case?
There are many factors which come into play when a solicitor makes the decision to take on a case. I will list the more usual ones below but this list will not be exhaustive and it will not be in order of importance. All claims are unique and come with their own quirks.
- First impression of YOU the client – I know this may seem a strange one to start with but just like in all walks of life, first impressions count. If a client calls me and is very vague about facts, is reluctant to give detail and gives contradictory information then this isn’t going to give me much confidence in a claim. There may be a reason for such sketchiness. For example, there may be a brain injury involved. More often than not it’s usually down to disorganisation. So my first tip would be, get organised! Before you call a solicitor find any paperwork you have relating to the accident/incident, jot down relevant dates, work out a brief chronology, have GP/hospital details handy, be ready to talk about your injury and what has happened to you. Everything discussed is confidential. I completely understand that you may want to speak to someone face to face rather than over the telephone but at least some details need to be taken for a solicitor to assess a potential claim and to set up a meeting.
- Things aren’t what they seem - I know I’m not talking about you when I say this but please do not tell any fibs. You may think there is a potential problem with your claim (such the fact that you’ve already had solicitors involved). It really is best to face these problems head on. If a solicitor is aware of a potential problem from the outset they have a headstart in being able to develop a strategy to work around it. If a solicitor suspects a client may be lying they will be very relectuant to take on a claim. Even worse, if a falsehood is discovered further into a claim you may find yourself lumbered with a hefty bill.
- Out of time – bringing a claim within the 3 year time limit was discussed in my previous blog.
- Poor prospects of success - You may not have a claim or very poor prospects of succeeding. What may appear an open and shut case to you may not be. See the flowchart in my previous blog.
- Value of your claim – this has been the hot topic over the last few years and it is set to become even hotter. Fixed costs have been introduced in personal injury claims worth less than £25,000. They are set to come in for clinical negligence claims in the near future although the threshold is as yet unknown. What this means for you as a client is that if your claim is low value you may not be able to find a solicitor willing to take you case on because they will not get paid for all or the majority of the work which needs to be undertaken. For example:-
- You trip over a broken bollard and break your thumb. You have some time off work and a few financial losses. Overall your claim is valued at £5,000
- Liability is denied by the council, they say they’re not responsible for the bollard. They produce reams of documents in support of this
- Investigations reveal the bollard belongs to the water company but they say they investigated the area the day before the accident and the bollard wasn’t broken then so someone else must be responsible. They produce reams of documents in support of this
- After numerous site visits, door to door enquiries and interviewing witnesses it is eventually established that a delivery driver backed into the bollard and they accept responsibility. However, they dispute the medical evidence and argue the claim is not worth £5,000
- After some argument the claim eventually settles for £4,500.
Believe it or not, in the above example it could take around 18 months to reach the point of settlement and involve costs of around £4,000. With fixed costs, a solicitor would only be able to recover just over £2,000. So a solicitor saying no to you may have less to do with the merits of your case and more to do with not being able to invest the time needed to bring about a successful conclusion for you. This is just as frustrating for the solicitor as it is for you.
6. You may just be contacting the wrong solicitor – see below ‘Choosing a Solicitor’.
Choosing a solicitor
Many of us have legal expenses insurance through policies relating to our vehicles and homes. This can be great. But not always. I would urge you not to be fobbed off with panel solicitors when you contact your insurers. Ask your insurers:-
- Who are the panel solicitors?
- Where are they based?
- Will they come and see me at home if I need them to?
- Do they specialise in the type of claim I want to make?
- What are the qualifications of the lawyer who will be dealing with my claim?
- Are the experienced in the level of needs I have?
- Can I have a meeting?
Your panel solicitor may not have an office near where you live. This may not be a problem for you if you are happy to have your claim dealt with by telephone, email and letter. However, if it is important to you to meet your solicitor (it is certainly important to me to meet my clients) then think about choosing a solicitor closer to home. Research the firm and the solicitor who has been allocated to you. If they don’t have the requisite experience, choose another firm. You need to choose a firm who specialise in personal injury and clinical negligence claims. Most firms have profiles of their solicitors on their website. Read them. Research them. Choose a solicitor who suits your case. It is your case and you have the right to choose your solicitor.
I am only going to deal with this very briefly as your funding requirements will be dealt with in detail by your solicitor when you instruct them.
- Legal Aid – this is now only available in a very limited number of cases, namely those involving children who sustain serious injury at birth
- Private – litigation is expensive. Very few people can afford to fund their case on a private basis. In the example cited above, as well as the £4,000 solicitor’s costs, on top of this would be VAT, the cost of obtaining medical records and reports, court fees, barrister’s fees etc If you are successful, the majority of your costs would be recovered from the other side (subject to fixed costs where applicable). If not successful, you would be seriously out of pocket.
- Conditional Fee Agreements – this is the most usual method of funding for injury claims. You will often hear them referred to as ‘no win, no fee’ agreements. Essentially, that is the case. If you are not successful in your claim, you will not have to pay anything. However, if you are successful in your claim and do not have legal expenses insurance your solicitor may charge you a success fee of up to 25% of your compensation. This success fee represents the risk the solicitor has taken in funding your claim to its conclusion with no guarantee of success and therefore no guarantee of payment.