What law applies for personal injury claim.

[MrFaulty]

Hello I would be really grateful for any advice.

My accident was in 2010.

After backwards and forwards with the MIB I am able to get compensation, My legal representative wants me to sign a CFA now.

If my case started before 2013, what law applies now, is any on going agreement from before 2013 still live?

Should I sign a CFA, or try to resolve it myself, I do not have legal experience but feel confident I can resolve.

The compensation amount is not a small amount.

Thank You for any advice.

[Peridot]

Hi MrFaulty,

I am a little confused. You're accident was in 2010 and you wish to make a claim now? Were you under 18 in 2010? There is a three year limitation on PI claims except in very rare cases.
You mention you've been dealing with MIB assume this was a road traffic accident with uninsured or untraced driver?
Did the claim start before 2013?
We're going to need a bit more explanation on the circumstances and what has been done so far to point you in the right direction. Just an overview of the accident, the injuries and reasons you have not pursued the claim before now would be helpful.

[MrFaulty]

Hi MrFaulty,

I am a little confused. You're accident was in 2010 and you wish to make a claim now? Were you under 18 in 2010? There is a three year limitation on PI claims except in very rare cases.
You mention you've been dealing with MIB assume this was a road traffic accident with uninsured or untraced driver?
Did the claim start before 2013?
We're going to need a bit more explanation on the circumstances and what has been done so far to point you in the right direction. Just an overview of the accident, the injuries and reasons you have not pursued the claim before now would be helpful.

Thank You for your reply:

Here is a quick summary,

1. Accident happened in 2010 three cars involved one car pulled out from side road and into path of two cars. Car from side road was not touched and drove away hence the MIB involved.

2. Case against other driver lost and MIB rejected initial claim. (First Solicitor Barrister did the representation)

3. On appeal Judge said we should approach MIB as untraced driver was partially at fault. Appealed to MIB in 2012 won appeal.
(Solicitor Barrister two handled case)

4. Since late 2012 the case has been on going with the solicitor with the MIB.

5. Recently about two months ago, the MIB made an offer.

6. Last month the solicitor has asked us to sign a CFA.

My question: As the case began before 2013 CFA came to the fore, does any previous agreement still exist or is a CFA required to sign away some of the compensation. The accident was very serious I was left with lots of injuries including spinal injuries and emotional problems.

I have written this for my relative and am wondering whether I should represent our side going forward without a solicitor. At the beginning both the current solicitor and barrister and previous solicitor and barrister advised us that we should leave the case as we could not win, I did the paper appeals.

Thank You for any advice.

[Peridot]

Hi again,
Ok think I understand a bit more now. Well done sticking to your guns. It must have been costly both financially and in stress and time needed to pursue this yourself.
You say the claim is on going I assume that a claim form was issued within the 3 year limitation period?
As far as funding is concerned what was the arrangement with the solicitor acting for you, prior to you receiving this CFA? Was there a previous agreement and if so what was it? You also need to check the original CFA if there was one and what happens in the event you go elsewhere and achieve a 'win' so to speak. I anticipate if they advised to drop the claim they wouldn't be entitled so don't panic, but worth checking.
What are the terms of the CFA? Feel free to post it up here with identifying info blacked out of course.
Is there still medical evidence to be obtained and schedules to be completed or is all that finalised so you are now at the negotiating stage?
Has the solicitor given any indication of the likely value of the claim?
Sorry rather more questions than answers but hopefully we'll be able to point you in the right direction once we have the further info.

[MrFaulty]

Hi Peridot,

Thank You for your help thus far, it is very much appreciated,

I have attempted to answers the questions below and have attached the 5 pages of the CFA.


1. You say the claim is on going I assume that a claim form was issued within the 3 year limitation period?
Yes the claim form and appeal to MIB was put in the first 3 years.

2. As far as funding is concerned what was the arrangement with the solicitor acting for you, prior to you receiving this CFA?

I am trying to ascertain this, the second solicitor handled the appeal to court of the initial case, which we lost against the known driver, the judge advised us to go to the MIB again due to the third car involvement. We had an agreement with the solicitor and paid for our solicitor, barrister and the opponents costs at that point as we lost the appeal case. I believe after that no formal agreement exists or a no win no fee may exist pre 2013. I will update when I find out for sure.

3. I anticipate if they advised to drop the claim they wouldn't be entitled so don't panic, but worth checking.
I believe both solicitors advised us to drop the claim, I need to trawl through my emails, to double check to ensure.


4. What are the terms of the CFA? Feel free to post it up here with identifying info blacked out of course.
The Five pages of the CFA we have been asked to sign are attached in PDF format, if you have difficulty viewing these. please let me know.

5. Is there still medical evidence to be obtained and schedules to be completed or is all that finalised so you are now at the negotiating stage?
5.1 Has the solicitor given any indication of the likely value of the claim?

All medical evidence and independent specialists reports exist, the MIB has made the first offer of over £10,000 just for the physical personal injury element.
The solicitor has given no examples of sums to expect, but we know on top of this element there should be an emotional element and loss of earnings due to the nature of the injuries involved.

6. Sorry rather more questions than answers but hopefully we'll be able to point you in the right direction once we have the further info.
Thank You appreciate your advice.
Not sure what to do other than handle the case/negotiation ourselves as the CFA means we will lose a big portion of the compensation. To sign a CFA at this point seems wrong especially as the solicitor hasn't contributed that much after the initial appeal court case.

Thank You, looking forward to your advice.

[Peridot]

Hi again Mr Faulty,

Having skimmed the CFA it does look pretty standard. I am concerned that they haven't amended any aspects bearing in mind the MIB are now at the table? There is of course always a chance matters will not settle so further hearings may be necessary.

Can you clarify that you have issued a claim against the MIB, or that they were a party to the original claim against the other driver that failed and their strand of the claim is continuing?

How many solicitors have you had? Are you still with the 2nd one that was being paid for the work they completed in relation to the appeal and any other work they completed following the appeal? Who obtained the medical reports and are they paid for? Has a schedule of losses and expenses been completed and submitted to the MIB yet?

The MIB have officially accepted liability so it appears there are no hoops to go through there. You believe you are now at the negotiating a settlement stage. Did the claim start on the RTA portal initially and have any costs been paid by MIB to date, if this is the case?

You said that you have all the medical evidence finalised, does this include any psychological issues. You mention emotional distress and that you anticipate a further offer to settle this aspect. Did you have a psychologist/psychiatric report in addition to the other reports relating to physical injuries? If the current offer is in relation to general damages (ie pain suffering and loss of amenity) then the psychological damages would usually be included in the general damages. The special damages are the loss of earnings, medication costs, travel to Dr's etc. which you believe you're yet to receive an offer on. Have you submitted a schedule of losses to the MIB yet?

Do bear in mind that damages can be reduced depending on factors contributing to the accident so if the untraced driver were 50% to blame for the accident then damages would be reduced by that percentage too. Similar happens if you were to be found partly to blame (contributorily negligent) for the accident too.

The valuation of the claim can be difficult, particularly where there is more than one injury, so it is often sensible to have some legal advice for this aspect. I am unsure why the solicitors wish to now sign you up to a CFA. Any uplift in costs would only be possible from the date the CFA is signed and the uplift would be expected to be significantly restricted bearing in mind liability would appear not to be an issue and that is the 'risky' part when agreeing to take on a claim. Are the solicitors still on the Court record as acting for you?

I would suggest that you need to discuss the funding with the solicitor and get it in writing what they anticipate the costs will be, what up-lift they anticipate and also how much they would charge if you did not enter the CFA. Would they consider a fixed fee to deal with the negotiations to settle?

If they are anticipating getting the appeal dealt with under the CFA that imo is not correct. The CFA would kick in at the date it is signed so would only be relevant for that period to conclusion. Don't forget if you paid the costs then you should be entitled to a refund of those you paid.

Sorry even more questions again. You need to pin down exactly what the solicitors are anticipating the costs to be and clarify the uplift they expect (or negotiate a lower % with them rather than the 25% maximum of your damages) before signing the CFA.

[MrFaulty]

Hi again Mr Faulty,

Having skimmed the CFA it does look pretty standard. I am concerned that they haven't amended any aspects bearing in mind the MIB are now at the table? There is of course always a chance matters will not settle so further hearings may be necessary.

Can you clarify that you have issued a claim against the MIB, or that they were a party to the original claim against the other driver that failed and their strand of the claim is continuing?

How many solicitors have you had? Are you still with the 2nd one that was being paid for the work they completed in relation to the appeal and any other work they completed following the appeal? Who obtained the medical reports and are they paid for? Has a schedule of losses and expenses been completed and submitted to the MIB yet?

The MIB have officially accepted liability so it appears there are no hoops to go through there. You believe you are now at the negotiating a settlement stage. Did the claim start on the RTA portal initially and have any costs been paid by MIB to date, if this is the case?

You said that you have all the medical evidence finalised, does this include any psychological issues. You mention emotional distress and that you anticipate a further offer to settle this aspect. Did you have a psychologist/psychiatric report in addition to the other reports relating to physical injuries? If the current offer is in relation to general damages (ie pain suffering and loss of amenity) then the psychological damages would usually be included in the general damages. The special damages are the loss of earnings, medication costs, travel to Dr's etc. which you believe you're yet to receive an offer on. Have you submitted a schedule of losses to the MIB yet?

Do bear in mind that damages can be reduced depending on factors contributing to the accident so if the untraced driver were 50% to blame for the accident then damages would be reduced by that percentage too. Similar happens if you were to be found partly to blame (contributorily negligent) for the accident too.

The valuation of the claim can be difficult, particularly where there is more than one injury, so it is often sensible to have some legal advice for this aspect. I am unsure why the solicitors wish to now sign you up to a CFA. Any uplift in costs would only be possible from the date the CFA is signed and the uplift would be expected to be significantly restricted bearing in mind liability would appear not to be an issue and that is the 'risky' part when agreeing to take on a claim. Are the solicitors still on the Court record as acting for you?

I would suggest that you need to discuss the funding with the solicitor and get it in writing what they anticipate the costs will be, what up-lift they anticipate and also how much they would charge if you did not enter the CFA. Would they consider a fixed fee to deal with the negotiations to settle?

If they are anticipating getting the appeal dealt with under the CFA that imo is not correct. The CFA would kick in at the date it is signed so would only be relevant for that period to conclusion. Don't forget if you paid the costs then you should be entitled to a refund of those you paid.

Sorry even more questions again. You need to pin down exactly what the solicitors are anticipating the costs to be and clarify the uplift they expect (or negotiate a lower % with them rather than the 25% maximum of your damages) before signing the CFA.

Hello Peridot,

Just to confirm, The strand of claim against the MIB is continuing.

We have had two solicitors and the second solicitor is continuing, after the court appeal no other payment has been made by us to the solicitor.
The MIB has sent us for independent reports, we don't believe that the Solicitor has sent us for any reports.

A schedule of losses and expenses has not been made, this would be the next step, I have a template and I am thinking of doing this myself as the solicitor is asking for the CFA to be signed at this stage. No Schedule for losses has been submitted to the MIB.

The offer made was for the physical injury, the emotional element has not been considered, we feel it was an initial attempt to finish the case quickly by the MIB. There are independent reports which suggest that a independent psychiatrist report should be obtained, this has happened and the reports do point to the fact emotional well being had been effected. We will not be paid in full ,only 60% of the overall compensation due to blame proportion.

Currently the solicitors are main contacts for MIB and are acting for us (unsure of the current agreement, no win no fee from pre 2013 law changes) .

Thank You for the solicitor funding advice, will look further at this.

Really appreciate you advice, would you advise me to go through solicitors and not to attempt to do it myself?

At the moment, the bits I have done myself, have gone better then when solicitors have been involved. The MIB appeal was more successful when I did it myself, then the original attempt from solicitor one.

Thank You

[Peridot]

Hi MrFaulty,

I think before you can decide whether to continue with the solicitors or go it alone you really need to have it clear exactly what the lawyers fees are likely to be.

I would carefully check the current offer in the table to ensure exactly what damages types the MIB believe they are covering in it. Usually physical and psychological damages are lumped together under the general damages heading. If they have had sight of the psychological report they may well be including the two together. Without knowing the details it wouldn't be possible to guess on the likely offer that should be acceptable.

It is usually the special damages that increase the settlement figure rather than the general damages, as they often include loss of earnings and potential future losses. There is a sliding scale of damages for the injuries themselves based on previous case law for similar injuries. It is also not a case of adding each figure for particular injuries you sustained together for example if you sustained a broken arm and a broken leg the pain and suffering and loss of amenity would have overlapped so that element would not be double paid so to speak.

Future losses are usually the more complicated to work out as these will be based on the medical evidence and likely prognosis for recovery, future potential issues such as future surgery requirements or the increased likelihood of developing another conditions as a result and the like. This is where it can get more complicated and case law may be needed to back up future loss claims in conjunction with the medical experts opinion. The losses you sustained to date should be reasonably straightforward to evidence, wage slips and receipts for example.

If the matter is ongoing has there not been a directions order from the Court setting out the timetable to get to a final hearing, if needs be. Of course you continue negotiating to the last minute but it does focus the parties on dealing with the claim?

Sorry not much help to you making a decision on whether to go it alone at the moment just flagging more issues. I would suggest pinning the solicitor down as to their anticipated costs and from what date they would expect them to flow from as a start before making a decision.

[MrFaulty]

Hello Mr Peridot,

1. If the matter is ongoing has there not been a directions order from the Court setting out the timetable to get to a final hearing, if needs be. Of course you continue negotiating to the last minute but it does focus the parties on dealing with the claim?

The MIB appeal has not gone to court, it is the MIB we are dealing with at the moment.

Thank You so much for your help,

I need to sit down and look at the points you have mentioned and decide on best way forward.
Will need to reconsider if the original offer made is just physical injury or emotional injury too.

[MrFaulty]

Hello Mr Peridot and anyone else who can help,

Unfortunately the solicitor has not responded to any of my questions.

I have requested case papers from the solicitor and informed the MIB I am the contact going forward, so I can handle this myself.

Speaking to the MIB they are at the point where they want to make a formal award from the paperwork they have including special damages.
I have not had the chance to review the paperwork as I do not have it.....not sure what happens if the MIB makes a formal award and we do not agree with it. I have asked for a reference to a report mentioned in the independent doctors report obtained by the MIB. The report was not reference at all and on investigation it would not be applicable in this case as far as I can see.

Is there any personal injuries barristers that may want to help on a pro bono basis, this case been complicated and really we should not have lost the initial case against the other driver as an independent witness saw the accident...…and stated what he saw in court. So we ended being directed to the MIB.

Any advice would be appreciated.

Thank You

[sarahangius]

For any personal injury, there are so many things that need to be considered when determining how much a personal injury claim is worth, and it can be tough to set a dollar amount on injuries you suffer in an accident. You may be entitled to compensation for medical bills, time lost from work, medical costs for ongoing injuries, pain and suffering, and so on.

[MrFaulty]

Hi Thanks for reply,

I am trying to get the paperwork from my solicitors, as I have decided to fight the case myself.

I have given the solicitors a months and reminded them also but I have had no response.

Is it reasonable to go to solicitors regulation authority now?
I don't feel they are going to give the paperwork concerning my case.

[MrFaulty]

Hi,

Also one thing bugging me is the original case against the other driver, an independent witness described exactly what he saw in the car accident. Whilst he was seen as an honest witness, the judge ignored what he said saying the accident happened to fast for him to see and he was not a driver?! I feel his statement was ignored because of his race. Is it possible to do a judicial review on the case, is there a time limit to do this.

[MrFaulty]

Hi All,

I am still progressing this claim personally.

One element is causing me problems, A audio transcription (police statement) was produced by the MIB early in the case which had a massive error in it.
The error was typed "I was swerving" when what was said was "I was not swerving", this has been professionally type by external audio typists now.

The MIB has admitted this as an honest mistake and I have gone through the complaints procedure up to the chairman of the MIB. next is the minister of transport. I feel the contributory negligence should be reduced as the MIB in fact contributed to a basic error which goes against their own values and principles of dealing in a fair manner, transparent manner and treating customers with respect and integrity.

What would be best way to pursue as there is not ombudsman or regulator for the MIB.

[des8]

If you are complaining to a government department it is usually worth copying in your Member of Parliament, and requesting his support.

If dissatisfied with the response from the relevant minister there remains a complaint to the Cabinet Office (email to publiccorrespondence@cabinetoffice.gov.uk or in writing to Public Correspondence Team, Cabinet Office, 70 Whitehall, London SWA 2AS

There is also the Parliamentary and Health Service Ombudsman to whom you can make complaint via your MP (https://www.ombudsman.org.uk/making-complaint)