Urgent help please for Personal Injury Claim

[Willow75]

Thank you for your replies, I really do appreciate your help.

our solicitor is the owner of the company.
He says the case has no chance of succession only due to the engineers report.
we had a solid case before the engineers report.

[Willow75]

Thank you so much, your advice has been much appreciated.

[Manxman]

Can I just ask (a) how much if anything have you paid your solicitor since he ended the no win no fee arrangement, and (b) how much more if anything you owe him for work done that you haven't paid him for yet?

I can see why others are recommending that you get a different solicitor but I think you'd first need to clarify what - if anything - you owe your current one. I'm not 100% certain but I think that if you try to change solicitors when you haven't paid your old solictor off, they won't release your file to the new solicitor.

Perhaps atticus could clarify that?

I like the advice from atticus to ask the engineer expert witness to clarify their evidence, but I think your solicitor has already dismissed that idea?

[Manxman]

This is the key paragraph that needs countered,

'Our solicitor informed us in November 2022 that one of our key witnesses has undermined the case when preparing the joint engineers report. (Although the engineer has said that his comments have been misinterpreted)'

So would an expert witnesses opinion help to clarify what this key witness was trying to convey?

https://www.jspubs.com/

I'm not sure a court would allow a second expert witness to clarify a first expert witness's report if the first witness is available.

(Which goes back to why the first witness can't be asked to clarify the report himself. Or why the OP's solicitor is so reluctant to ask him to do so...)

[Manxman]

As a layman I do not see why the report is fatal to the case? The staircase maintained or not was surely not fit for purpose. A solicitor who does not believe in your cause will hinder not help. The time is short as you say and the issue of costs is very worrying and I would be terrified of being a huge sum being awarded against me. I wish I could help further.

Obviously I don't know the detail but I suspect that the OP's husband's case is based on an assertion that the school was negligent in not maintaining the staircase as they should have done, and that if the school had not been negligent the husband would not have suffered injury.

That argument is undermined if the expert witness says (apparently) that the injury could still have occurred even if the staircase had been properly maintained. Not sure how that could be misinterpreted really...

[Manxman]

So what you need to do is get a new expert witness, to look at the facts / evidence to state 'that had maintenance taken place, then the wrought iron spindle would remain in place if it was to be kicked'....

I'm not sure it would be acceptable to just keep trying different experts until you find one that gives the evidence you want?

[echat11]

I'm not sure a court would allow a second expert witness to clarify a first expert witness's report if the first witness is available.

(Which goes back to why the first witness can't be asked to clarify the report himself. Or why the OP's solicitor is so reluctant to ask him to do so...)

If the first Expert Witness can't clarify what he meant, because importantly he is saying 'that's not what he meant', then the only way to resolve the situation is to get another Expert Witness for that reason.

[echat11]

I'm not sure it would be acceptable to just keep trying different experts until you find one that gives the evidence you want?

I didn't say that, but it would be if the facts given in an Expert Witness Statement are incorrect and no clarification is forth coming.

[Willow75]

Thank you all for your comments.

Since ending the no win no fee, we have paid our solicitor almost £10k which includes the court fee of £5148 that we paid.

Everything has been paid up to date and he has said that if we serve the notice of discontinuation he will owe us around £2400

If we wish to continue the case, which he keeps telling us not to, then he wants £8000 to cover his fees for preparing the documents for the court by 31 May and for the barrister fees for attending a court hearing.

I cannot understand why he has not asked for a clarification on the engineer experts report but he said that our barrister mentioned it would look unprofessional and the judge would dismiss it.

We have even paid for a private investigator to locate the child to identify his physical appearance ie, was he a small child who would not have had the strength to kick out a spindle that was properly fixed.

[Willow75]

Apologise for the long post but this is an extract from an email we received following the engineers report....

I asked counsel to look again at the matter because I felt that the joint report did not adequately express the views I knew the engineer held. This is Counsel’s reply to me;

I think the case has 2 big issues. Breach of duty and causation.

Unless the Defendant was in breach of duty in failing to carry out an inspection which would have directed a repair that would have prevented this accident we fail.

The engineer has conceded (perhaps rightly) that the individual baluster was not unduly loose. He has effectively said only a bar across the middle of all balusters would have prevented this accident, such as was installed as an emergency measure only. That has not been installed after final reinstatement.

He has conceded that a restraining bar under the handrail is not mandatory.

He certainly has presently conceded that a 14 year old could have kicked out this baluster even in a well-maintained bannister without restraining bar.

Our case was always that this bannister was so loose overall that it put the Occupier on notice of a danger which should have led to timely expert inspection, and that inspection would on balance of probability have led to stabilisation of the whole bannister in such a way as would have prevented this accident.
If our case comes down to the Occupier Defendant foreseeing a 6ft boy (in effect a man kicking a single baluster as occurred in this case) - we have always considered a Judge would not adopt that degree of foresight. I still do not believe a judge will expect that.

Even if the engineer re-wrote his opinion expressed in the joint statement in the way that you say (to say that only an exceptionally strong 14 year old would have been able to kick out a well restrained single baluster: firstly, it hugely undermines his authority and credibility to make that change; secondly, it is little more than a mere opinion without actual data. Why could not a furious and excessively violent kick by this boy have done so?

If the specific baluster in question was in fact adequately secure, how has our engineer demonstrated that stabilisation of the rest of bannister would materially have increased this baluster's resistance to the kick actually delivered?

I fear we are clutching at straws. I remain regrettably firmly of the view that the prospects of success are well below 50%.


There is nothing left to be done.


Please give me permission to serve a Notice of Discontinuance

[islandgirl]

so there is no argument that the item itself was not fit for purpose maintained or not?

[atticus]

Reading counsel's advice, the case for negligence does not look good.

[echat11]

Posted for info only, https://www.basystems.co.uk/blog/bal...ed-document-k/

Link at bottom of page for the complete Document K

https://www.nationaltesting.co.uk/ne...for-uk-schools

https://www.lbhf.gov.uk/sites/defaul...spections.docx

[Willow75]

I have rang so many solicitor firms this morning and nobody will take on the case at such a late stage.

Our solicitor is being quite rude and pushy and has demanded an answer by 11am today despite my email asking him to give us until tomorrow morning.

Our only options now seem to be either serve the notice of discontinuation or pay him the £8600 to preoate the files for the listing hearing on the 20th June.

[atticus]

You only posted at 10.29 am!. Keep trying.