The ‘simples’ injury claims process – no need for lawyers

The small claims limit for road traffic accident injury claims looks set to increase from £1,000 to £5,000 in 2018 or 2019. This simple guide will help injured drivers, cyclists and pedestrians with making their straightforward (and ‘unnecessary’ according to the government) claims:

  • Complete and submit a Claim Notification Form to the driver’s insurer via the MoJ Claims Portal.

 

  • If the insurer admits liability:
    1. Obtain your medical records and ensure that they are correct and in order;
    2. Instruct a medical expert in accordance with CPR Part 35. The type of expert will depend on the nature of your injuries. You will probably need to source the expert via Medco. You will have to pay the expert and claim this back from the insurer at the end of the claim. The insurer may alternatively offer to fund an expert of their own choosing but that would not be in your best interests!
    3. Collate evidence of all expenses incurred;
    4. Obtain a statement from any carers who provided support due to your injuries;
    5. Obtain evidence and procure wage documentation to show and support any claim for loss of earnings;
    6. Review the expert medical report.
    7. If the prognosis is certain and clear, submit the expert report and evidence of expenses and loss of earnings to the insurer via the Portal together with your offer. You will have to assess the value of your claim based on Judicial College Guidelines and court awards made for similar cases/injuries or, if the insurer led government have their way, a fixed tariff scheme (where compensation for most 6 month injuries would be £400);
    8. If the expert report suggests that there is a real prospect of medium-long term symptoms or an uncertain prognosis, apply for an interim payment from the insurer whilst you arrange any necessary medical treatment and investigations;
    9. Instruct any other types of medical expert recommended by the first expert;
    10. Then review your condition and assess whether further expert evidence is needed from the original expert or any other types of expert based on the nature of those symptoms;
    11. Once finalised medical expert evidence is available and all financial losses can be calculated, submit the expert evidence and a schedule of financial losses to the insurer via the Portal and with an offer to be assessed as per #7 above.
    12. The insurer will respond. As an experienced PI lawyer, I find most insurers will make an initial offer at around 70% of the true value of the claim. You can try to negotiate with the insurer but without any legal representation, they are likely to say ‘accept it or take us to Court’;
    13. If you ‘take them to Court’, you will have to pay the issue fee (£308 for determination of damages);
    14. You will have to draft a Part 8 Claim Form and enclose the Court Proceedings Pack forms and all supporting evidence and lodge these at Court with the fee cheque.
    15. You will need to ensure that the Claim is served on the defendant driver or their nominated solicitor.
    16. You will then have to represent yourself at trial;
    17. If you choose to instruct a lawyer at this stage, their costs will have to be paid from any compensation you recover. The insurer will not be responsible for any of your legal costs, even if you win. The insurer will be represented by a barrister who will be contesting your claim for damages, your claim for expenses and your claim for expert fees with there being a very real risk of you being awarded less than the insurer’s previous best offer;
    18. Due to the state of the current court system, this entire process would be likely to take at least 10 months.
    19. If you instructed your own medical experts, the process would involve an initial outlay of costs in the region of £500-£1,000 depending on the type/number of experts and the level of the court fees.

 

  • If the insurer denies liability:
    1. Contact any witnesses to the accident and prepare a CPR compliant witness statement for them to sign;
    2. Take and retain photographs of the accident scene and all damage/injuries caused;
    3. Obtain a copy of any police report available, the cost of which is usually in the region of £140;
    4. Obtain a copy of any engineer reports regarding the vehicle damage;
    5. If none of the above support your claim, you will have to seriously consider whether or not the claim should be taken any further.
    6. If taking further, then follow all steps #1 – #12 above.
    7. If court proceedings are needed in this instance due to no settlement being agreed, you will need to lodge the Claim Form but this time with Particulars of Claim rather than the Court proceedings pack.
    8. The Court issue fee will be vary depending on the value of your claim from between £35 to £205.
    9. Get the claim issued and served on the defendant or their legal representative.
    10. You will need to ensure that you obtain permission to rely upon your medical experts.
    11. You will need to then comply with the Court’s directions up to trial relating to disclosure, exchange of witness statements, and any written questions to your experts and then provide the court with all necessary documents ready for trial.
    12. You will have to pay a hearing fee of between £25 – £335 depending on the value of your claim;
    13. This time, the insurer’s barrister will not just be challenging your claims for damages and costs but will be challenging the issue of liability, i.e. denying that defendant’s insurer should have ay liability for paying you anything at all. For this, they will be alleging that you were at fault for your own injuries and there are likely to be insinuations as to the veracity of your account of events.
    14. If you win, it is very unlikely that you will recover 100% of the damages and costs claimed.
    15. If you lose, you will receive nothing and will have incurred expert and court fees of in the region of £500 – £1,000.
    16. This entire process where liability is disputed would most likely take at least 12-15 months.

“SIMPLES!”   WHIPLASH SMALL CLAIMS LIMIT   or maybe confused.com!?

Hmmm, it would seem that, due to this hugely uneven playing field, the reality is that defendant insurers will:

a) deny liability and call the claimant’s bluff on the large majority of claims;

b) pay out on claims where they are taken to court (in which case they’ll only be paying out what they should have paid in the first place as there will be no sanctions for non-co-operation/failure to mediate); and

c) offer £400 + expenses on the majority of claims that they are willing to admit liability on at the outset (the current average settlement based on court awards and the Judicial College Guidelines is probably in the region of £3,000).

However you look at this, these reforms will be yet another huge win for the insurers and another damaging blow to injured claimants.

 

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