What law applies for personal injury claim.

[MrFaulty]

Hi All,

Thanks for replies so far.

My solicitor turned up out of the blue, after I complained 7 weeks ago, I had threatened to go to the law society, as they were not giving me my case file.

Basically the solicitor has said either we sign the CFA and they take 25% from general damages and some of the special damages and they will deal with the claim.

Or they will bill us directly for 5-6 years work and they will give us the file, as they have done work on the file they can withhold the whole file.
This would mean can I handle the case myself which I am comfortable doing.

They said they were acting on a no win no fee basis, so the CFA only gets signed at the point a success is likely, I feel as the case has been going since 2010 they should have had an agreement in placed before 2013, so that law should apply.

Finally they said they don't care if the Law Society comes involved as they have worked on the case they will be told to basically get lost...…..

Any advice on the above will be valuable and thank you for responses.

[Peridot]

Hi Mr Faulty,
Solicitors will generally hold a lien over files if there are costs to be paid. So that isn't unusual. I am however confused on what arrangement you have with them as far as fees are concerned. They should have provided you with costs estimates that they kept updated if the situation changed.
The solicitors have to provide a risk assessment justifying their uplift. I am confused why they say up to 25% of generals and an additional sum off your special damages?!
You need to carefully check the initial paperwork you had from them confirming the terms of the CFA and also get a print out of what time recording (and therefore billing) they have made.
What fees do they actually suggest should be paid to them?

[MrFaulty]

Hi Mr Faulty,
Solicitors will generally hold a lien over files if there are costs to be paid. So that isn't unusual. I am however confused on what arrangement you have with them as far as fees are concerned. They should have provided you with costs estimates that they kept updated if the situation changed.
The solicitors have to provide a risk assessment justifying their uplift. I am confused why they say up to 25% of generals and an additional sum off your special damages?!
You need to carefully check the initial paperwork you had from them confirming the terms of the CFA and also get a print out of what time recording (and therefore billing) they have made.
What fees do they actually suggest should be paid to them?

We paid for and used the solicitors and their barrister in 2012 as we needed to go to court appeal against the other driver in the accident, we lost but the judge said the untraced driver was partially at fault. So I personally had already appealed the MIB decision and the solicitors have been handling the case after ie contacting MIB, sending for medicals, slowly chasing MIB. I don't believe we ever officially signed any agreement for the MIB appeal etc... As soon as the first offer came from the MIB they asked me to sign a CFA with 25% for them. Since December 2018 I have been trying to get the solicitors to tell us what agreement we have with them as I believe there is no agreement. Yesterday the solicitor basically said you have been instructing us to deal with the MIB so we are due fees, either sign the CFA or we bill you directly and it doesn't matter if I get paid or not from the MIB. They have never sent us any document concerning how much we owe them at all in 6 years.

Yesterday the solicitor said he will want 25% from the General Damages and elements of Special damages, only from past losses? I am not sure if there will be any future losses.

I have asked them on countless occasions since December to give us a figure for their work, ie what we would owe them, yesterday the solicitor didn't mention a figure all he said was he will bill me for 6 years work or CFA.

I get they have done work for us with the MIB, so why can't they just tell us a figure for their service?
On the court appeal we paid them a lot of money I believe it was over £5000, I have paid them in that period for other fees but I need to dig up all the costs, I believe it maybe £12,000. In court the appeal lasted 5 minutes before the barrister gave up and said we should go to the MIB.

The solicitor said he has lien on the file, so I said why don't you keep the documents you have worked, he said he doesn't have too, he can keep the whole file and if the Law Society asks him he will tell them to get lost for this reason.

He said a barrister will do the schedule of general damages and special damages.....

I feel I can do the damages myself.

It is stressful dealing with the solicitor, was surprised he turn up out of the blue. After ignoring me for so long, I asked for the case file 7 weeks ago and told them I was going to the Law Society last week. I launched an official complaint with them also made a freedom of information request from them.

I honestly not sure what to do but I don't trust what I am being told by the solicitor.

Sorry for the length of the post and really do appreciate the help provided.

[Peridot]

Hi again,

I am somewhat surprised by their attitude as you believe there has never been any terms of business signed or fee estimates provided!
I think you need to set aside the time to go through all your paperwork from the solicitor.

You need to set out a timeline demonstrating the following:-
Work they were instructed to undertake
Letters received from them confirming terms of business, charging rates and confirmation of who was dealing with the matter
Fees or arrangement agreed (eg CFA) at any point together with the follow up letter confirming fees etc
Payments you have made throughout the process (with proof if at all possible)
Any correspondence that you have had concerning costs and fees throughout the process.

You need to ask the solicitor to provide a full breakdown of their costs to date with a supporting print out from their accounts ledger.
You also need their complaints procedure which they are obliged to provide you with.

Once you get that then you need to check what payments you have been made against the time recording. It would be sensible to go through the print out (it will take some time I'm afraid) and check what has actually been time recorded and whether the time is appropriate for the task completed. It seems the solicitor wants two bites at the cherry effectively which isn't allowed. They can't be remunerated twice for work they have done.

It may be necessary to negotiate a final figure due to them for work completed in order for them to release the file but only for work they have done not double payments or uplifts that you have never agreed to!

If it becomes necessary to make a formal complaint once you have considered their time sheets and their request for whatever sum and if they do not deal in a satisfactory way you can then go to the SRA (Solicitors Regulation Authority) if you believe they have breached one of the principles that can be found here:- https://www.sra.org.uk/consumers/sra...age#principles Or if it is not a principle that has been breached then it may be necessary to make a formal complaint to the Legal Ombudsman (LeO) here :- https://www.legalombudsman.org.uk/

There are numerous fact sheets on this site with advice on how to complain. LeO will not deal with a complaint however that hasn't first been made to the firm itself (hence you need to obtain a copy of the firm's complaints procedure which they must make available to clients).

So frustrating when you want to be sorting out your claim but unfortunately you need to get the facts straight with timelines, documentation (or not if you never received any) client care information given to you and clarification of exactly what fees have been incurred to date before you can get hold of your file.

Hopefully the threat of a formal complaint will at least make them provide you with the print out of time recording and your client ledger so you can see what you are dealing with before making a final decision.

[MrFaulty]

Hi again,

I am somewhat surprised by their attitude as you believe there has never been any terms of business signed or fee estimates provided!
I think you need to set aside the time to go through all your paperwork from the solicitor.

You need to set out a timeline demonstrating the following:-
Work they were instructed to undertake
Letters received from them confirming terms of business, charging rates and confirmation of who was dealing with the matter
Fees or arrangement agreed (eg CFA) at any point together with the follow up letter confirming fees etc
Payments you have made throughout the process (with proof if at all possible)
Any correspondence that you have had concerning costs and fees throughout the process.

You need to ask the solicitor to provide a full breakdown of their costs to date with a supporting print out from their accounts ledger.
You also need their complaints procedure which they are obliged to provide you with.

Once you get that then you need to check what payments you have been made against the time recording. It would be sensible to go through the print out (it will take some time I'm afraid) and check what has actually been time recorded and whether the time is appropriate for the task completed. It seems the solicitor wants two bites at the cherry effectively which isn't allowed. They can't be remunerated twice for work they have done.

It may be necessary to negotiate a final figure due to them for work completed in order for them to release the file but only for work they have done not double payments or uplifts that you have never agreed to!

If it becomes necessary to make a formal complaint once you have considered their time sheets and their request for whatever sum and if they do not deal in a satisfactory way you can then go to the SRA (Solicitors Regulation Authority) if you believe they have breached one of the principles that can be found here:- https://www.sra.org.uk/consumers/sra...age#principles Or if it is not a principle that has been breached then it may be necessary to make a formal complaint to the Legal Ombudsman (LeO) here :- https://www.legalombudsman.org.uk/

There are numerous fact sheets on this site with advice on how to complain. LeO will not deal with a complaint however that hasn't first been made to the firm itself (hence you need to obtain a copy of the firm's complaints procedure which they must make available to clients).

So frustrating when you want to be sorting out your claim but unfortunately you need to get the facts straight with timelines, documentation (or not if you never received any) client care information given to you and clarification of exactly what fees have been incurred to date before you can get hold of your file.

Hopefully the threat of a formal complaint will at least make them provide you with the print out of time recording and your client ledger so you can see what you are dealing with before making a final decision.

Thank You for the responses.

I have asked the solicitor to provide detail of how much we owe, in order to get the file.

In the mean time, the MIB have made another General Damages offer but it is really not in line with Judicial College Guidelines, past cases.
It is very low considering the diagnosis made by independent experts.

To make sure I am doing the right things, I am looking at getting a direct access barrister.

It would be good if I could get a pro-bono barrister as an element of the MIB handling of the case is in public interest.
I haven't been able to find anyone pro-bono.

So still going through complaints procedure.

[Peridot]

Hi MrFaulty,
Glad you have started the complaints procedure. As far as valuing your general damages are concerned the MIB do not add together each injury you sustained from the JSB guideline figures. Any medical evidence has to be agreed the calculation then looks at pain suffering and loss of amenity. With multiple injuries these three areas can of course overlap for example a whiplash and fractured wrist the pain and suffering will be together although in different parts and both injuries could prevent work etc so there wouldn't be a case to double the amount so to speak for say a 6 week period while the wrist is in plaster for example.
It is sensible to obtain some independent advice on the value of your claim although the person advising will need sight of all medical evidence you have supporting your claim. You may find difficulty locating a pro bono barrister bearing in mind the availability of CFA's available for a solicitor to take this on but it is worth looking. I suspect you may have to pay for the advice.
In addition if there is any argument over the fault and whether there was an element of fault on both sides this may also reduce the sum for general damages (and special damages when you get to them) by the percentage appropriate for the fault split so for example if this was a 75/25 split then you would be entitled to 75% of the damages you would have been entitled to had the other person been wholly to blame. I appreciate you know this already just adding it in here for those who wouldn't be aware and may be reading.

[MrFaulty]

Hi MrFaulty,
Glad you have started the complaints procedure. As far as valuing your general damages are concerned the MIB do not add together each injury you sustained from the JSB guideline figures. Any medical evidence has to be agreed the calculation then looks at pain suffering and loss of amenity. With multiple injuries these three areas can of course overlap for example a whiplash and fractured wrist the pain and suffering will be together although in different parts and both injuries could prevent work etc so there wouldn't be a case to double the amount so to speak for say a 6 week period while the wrist is in plaster for example.
It is sensible to obtain some independent advice on the value of your claim although the person advising will need sight of all medical evidence you have supporting your claim. You may find difficulty locating a pro bono barrister bearing in mind the availability of CFA's available for a solicitor to take this on but it is worth looking. I suspect you may have to pay for the advice.
In addition if there is any argument over the fault and whether there was an element of fault on both sides this may also reduce the sum for general damages (and special damages when you get to them) by the percentage appropriate for the fault split so for example if this was a 75/25 split then you would be entitled to 75% of the damages you would have been entitled to had the other person been wholly to blame. I appreciate you know this already just adding it in here for those who wouldn't be aware and may be reading.

Latest Update.

The solicitor has taken ages to come back, he promised that he would send details and figures of what we owe.

He now says to get the figures of what we owe, we would need to pay £700 to go through the case file? but it will be a substantial amount.
He says he sent a CFA for us to sign in 2013 but its been misplaced by them? We can't remember signing any CFA..

They have asked us to sign a CFA no after we have offers..

Any advice?

Thank You in advance

[Peridot]

Hi Mr Faulty,
That is ridiculous in my opinion! They must have some way of time recording otherwise how have they got to the figure they allege you owe them! I have never heard of a firm trying to charge to cost a file when a complaint has been raised. Losing a CFA is their problem not yours! You can probably tell this has irritated me somewhat! This site may help:- https://www.lawsociety.org.uk/for-th...egal-services/
This link also deals with Legal Ombudsman reporting:- https://www.lawsociety.org.uk/for-th...t-a-solicitor/
It may be worth you giving them a call for some guidance they may be able to clarify whether the fee to check the file is reasonable! It is common for a photocopying charge to be raised when copying a file but that is peanuts compared to what they have indicated and not even to provide you with your file!
Sort your timeline out and collate the relevant documents relating to costs estimates etc received from the solicitors so you can see what happened when and be more able to explain the course of events if needed.

[MrFaulty]

Hi Mr Faulty,
That is ridiculous in my opinion! They must have some way of time recording otherwise how have they got to the figure they allege you owe them! I have never heard of a firm trying to charge to cost a file when a complaint has been raised. Losing a CFA is their problem not yours! You can probably tell this has irritated me somewhat! This site may help:- https://www.lawsociety.org.uk/for-th...egal-services/
This link also deals with Legal Ombudsman reporting:- https://www.lawsociety.org.uk/for-th...t-a-solicitor/
It may be worth you giving them a call for some guidance they may be able to clarify whether the fee to check the file is reasonable! It is common for a photocopying charge to be raised when copying a file but that is peanuts compared to what they have indicated and not even to provide you with your file!
Sort your timeline out and collate the relevant documents relating to costs estimates etc received from the solicitors so you can see what happened when and be more able to explain the course of events if needed.

Not had much success with the organisations mentioned but the Solicitor has really annoyed me.
By us asking for the breakdown of costs to make an informed decision whether to handle the case on our own,
he is saying we are playing games and holding him to ransom?

He basically said he will send a bill if we do not sign the CFA in two weeks.
The he will chase us for it and on payment we can take the file.

I have raised a complaint with the Legal Ombudsman but this will take a long time to deal with.

Timeline:

1. The MIB appeal was done by us personally before the solicitor became involved.
2. The solicitor got involved for the court appeal, with a signed agreement for the court appeal.
3. What the solicitor is saying is that they handled the Court Appeal on a private retainer basis.
4. After the Court Appeal they have been acting on a No Win No Fee basis
even though no CFA was in place, but they said they sent out a CFA for us to sign.
5. NO CFA was ever received by us.
6. They have not kept us up to date on the costs as they were acting on No Win No Fee basis.
7. Now the solicitor wants a signed CFA or he will send a bill for the work he has done as he has done work on a private retainer basis.

Basically the solicitor is now bullying us into signing a CFA or he will take us to court to get the fees on a private basis.

Any advice will be appreciated.
How should will deal with any court summons for payment?

Thank You