Loss of Earnings

[bootneck]

Hi,


I was unfortunately involved in a RTA last month, another vehicle blindsided me and crashed into the side of my vehicle at a junction. Liability is not in question, 3rd party has already admitted fault. My insurance company (Hastings) has appointed their own law firm (Carpenters) to deal with the personal injury claim side of things, this is being paid for by my motor legal cover than I had attached to my policy.

I work offshore oil and gas in rope access, I have a limited company which is a one man band, myself being the only person who carries out the work. I was unable to mob to a 2 week trip which was leaving less than 48 hours later after the accident, this was due to some whiplash injuries. I have provided my signed contract for that 2 week trip, 2 years worth of full accounts and a letter from my client confirming the details of the contract like duration and agreed rates of pay, I have also provided the invoice that I would have submitted at the end of the 2 week trip.

My appointed solicitor (I use the term loosely, as he has recently confirmed that he is not a fully qualified solicitor, although he does have a "law degree."), is trying to tell me that not only can I claim for those loss of earnings as a result of the accident, but all I am entitled to is any personal loss and anything else is "written off" as a company loss! I have explained to him the way things are structured with my set up and how any earnings under the company name are also my earnings, he is not having any of it and just keeps saying that the 3rd party might say this and the 3rd party might say that. I feel as if he is not representing me the way I want him to. I'm not an idiot, I know some law and have done some research and know that whilst he is technically correct to an extent, if the case went to court a judge would look at the whole picture and undoubtedly rule in my favour. I am not claiming for anything out of the ordinary, I haven't even put daft things like claiming for painkillers etc. All I want back is rightly what I am owed and what I have lost as a result of a non-fault accident.

Advice please on the above and what to do? I'm not sure of what rights I have. Hastings are saying I can't change solicitors and it HAS to be done through their chosen appointed firm which in this case is Carpenters. I've spoken to a friend of mine who is a solicitor but in family law and he said that ANY loss as a result of the accident should rightly be recoverable and he agreed that a court (if it went that far) would most certainly rule in my favour for my loss of earnings.

[atticus]

I am sorry to hear about your accident. You do not need to be rushed by your insurer into taking low quality advice. Remember that the limitation period for personal injury claims is 3 years from the date of the accident.

Clearly your "solicitor" is not a solicitor. You should seek advice from a solicitor: insist that Carpenters provide a qualified legal professional to advise you so that you do not have to seek advice from random strangers on the internet.

I assume that Hastings is your insurance company. Whatever they have said is wrong: you are free to consult a solicitor of your own choosing.

[PallasAthena]

It looks like the OP has bought the Motor Legal Expenses extension to his motor insurance policy with Hastings Direct which will pay for the OP's legal costs in bringing his claim for loss of earnings. There's a summary of the cover here Motor Legal Protection & Legal Protection Insurance | Hastings Direct . I haven't seen the policy wording but often insurers retain the right to nominate the solicitor providing the service under the legal expenses extension. If that is the case here OP will not be able to choose his own solicitor, at least not if he wants Hastings to pay for it.

The policy should contain details of how to make a complaint under the Motor Legal Expenses extension if OP is unhappy with the quality of legal advice being given.

[atticus]

I have a recollection that there was a case a few years ago which established that insurers may not override the client's choice of solicitor. They do of course have cosy referral arrangements with panel firms.

[des8]

For information; https://www.bentleysolicitors.co.uk/freedom-of-choice

[bootneck]

Thank you all for your comments thus far, appreciated.

I feel I need to perhaps seek a second opinion at least from another law firm, someone that is fully qualified.

In my particular financial circumstances and how I earn my livelihood, I feel like my current representation is not fully prepared to put my case forward in the manner that it should be. I am all too aware that law is law and sometimes it works with us and against us but the fact is it's not always clear cut and courts and judges (if it went that far) would look at the bigger picture on a whole. Fact is, I have endured proven loss of earnings through an accident that wasn't my fault and I rightly want that loss reimbursed. I haven't asked for anything out of the ordinary and I am only claiming for what I am rightly entitled to.

[HariSeldon]

Fact is, I have endured proven loss of earnings through an accident that wasn't my fault and I rightly want that loss reimbursed. I haven't asked for anything out of the ordinary and I am only claiming for what I am rightly entitled to.

It sounds like you have though! Assuming that for tax reasons more money goes to the Limited company than you take out in drawings then it sounds like you want the insurer to reimburse both your personal earnings and the profit that your employer (which in this case just happens to be your limited company) would otherwise have made?

You must surely be aware that you and your limited company are two distinct legal entries? It seems somewhat duplicitous that when you deal with HMRC for tax purposes you will claim the personal/business earnings are separate but when dealing with an insurer you wish to claim that they're the same...

That isn't to say that your Limited company can't separately claim off the third-party but I think your existing solicitor is correct that that is beyond his remit and legal representation for your Ltd company is not something Hastings should be paying for.

[bootneck]

It sounds like you have though! Assuming that for tax reasons more money goes to the Limited company than you take out in drawings then it sounds like you want the insurer to reimburse both your personal earnings and the profit that your employer (which in this case just happens to be your limited company) would otherwise have made?

You must surely be aware that you and your limited company are two distinct legal entries? It seems somewhat duplicitous that when you deal with HMRC for tax purposes you will claim the personal/business earnings are separate but when dealing with an insurer you wish to claim that they're the same...

That isn't to say that your Limited company can't separately claim off the third-party but I think your existing solicitor is correct that that is beyond his remit and legal representation for your Ltd company is not something Hastings should be paying for.

Thank you for your input.

When it comes to loss of earnings for directors of a limited company in a similar set up to mine, the courts generally recognise that if the directors income is largely derived from the company's profits, then a loss of company profit due to the directors inability to work can indeed be considered a personal loss. This is especially true if (like me), the director of the company is the sole income generator and the company is merely a vehicle for that income.

The advice I have been given elsewhere, is that I can pursue the loss of earnings as a whole and that by providing the evidence of loss such as the signed contract (which names me as the "operative"), company accounts, accountants letter and letter from myself detailing the company structure, this can most certainly be done and has been done many times in the past, and should it go to court hearing stage, there is a very high probability that the court would indeed rule in my favour.

The takeaway from this ( and you or others may counter debate this), is that it is important to present the claim in such a way that shows the company's earnings/profits and my income are one and the same.

[bootneck]

I am sorry to hear about your accident. You do not need to be rushed by your insurer into taking low quality advice. Remember that the limitation period for personal injury claims is 3 years from the date of the accident.

Clearly your "solicitor" is not a solicitor. You should seek advice from a solicitor: insist that Carpenters provide a qualified legal professional to advise you so that you do not have to seek advice from random strangers on the internet.

I assume that Hastings is your insurance company. Whatever they have said is wrong: you are free to consult a solicitor of your own choosing.

Thank you for your comment.

When you say "free to consult a solicitor of your own choosing," you surely mean outside of the legal expenses cover, i.e I would have to transfer the case (if possible) to another firm and fund this myself or through a no win no fee basis? Hastings have informed me on two separate occasions now, that I am not allowed to dictate who the legal firm is to be and that I must use their appointed firm.

[atticus]

I do not surely mean that. But by all means consult a reputable solicitor, and ask if they will take your case on a conditional fee basis.

[bootneck]

Thank you. I shall be making some enquiries today.