Express Solicitors partner Damian Bradley provides an in-depth overview of the process for pursuing a personal injuries claim as well as the regulations surrounding them. He shares his professional knowledge and discusses the entire process, from selecting a law firm to proving liability.
How has the legal framework changed over the past 20 years as a personal injury lawyer? In particular, what is the legal protection available to victims of injury?
Over the past 20 years, the legal framework has undergone significant changes. The legal aid for personal injury was effectively removed in the 1990s. This was unusual because when one wins a personal injury case that was supported by legal aid, there was no actual expense to the legal assistance fund. The tortfeasor’s insurers paid the legal expenses and the benefits back full, along with some NHS costs. So the net effect for state was a gain.
The state sought a way to recover the benefits but also to transfer the risk of funding personal injuries claims that weren’t successful. The state created ‘No Win, No Charge’ agreements, which passed the risk to claimants and their lawyers. Conditional fees agreements with claimants were often backed by After the Event insurance. They have been a standard feature of litigation for the past two decades. The success fees paid by the lawyer contributed towards the cost of losing cases. They were also a commercial basis that allowed litigation services to be provided to clients with additional recovery of ATE Premiums.
ATE insurance was and is crucial in protecting claimants against the risk of having to pay their own disbursements in a failed case or the costs of the other side, such as when they fail to beat a Part 36 offer.
This system was in operation for a decade and provided compensation and representation to all those who were injured by no fault of their own. There were many changes, including Medco, which was a round-robin system to select medical experts for low-value RTA cases. This created its own problems. In an effort to reduce costs, the claimant’s lawyer was not allowed to use their knowledge to find a competent independent expert.
Over the past 20 years, the legal framework has undergone dramatic changes.
A host of portals have been created and fixed costs imposed for work of low- to medium value. This has increased the pressure on recovery costs. This clearly has had an effect on shifting more costs to the claimant, which in turn eats into their damages compensation. The Jackson reforms shifted the responsibility of the success fees and ATE premium payment from the tortfeasor to the claimant.
In Simmons [2012]EWCAC Civ 1288, a claimant who was denied the right to recover a success fees from a defendant under Jackson reforms was allowed to receive a 10% increase on their award of general damages to ease the blow. The result for most claimants is that they now recover around 60% to 70% of their award, compared with 20 years ago, when they could only recover 100%. The balance will go towards unrecovered lawyer fees and the ATE premium, if applicable.
It is disappointing to see these reforms supported by predominantly Conservative governments over the past decade or so. This was despite the fact that there has been tremendous pressure from the insurance sector to make changes. Notable is the fact that over 40 Conservative MPs had declared financial interests in the industry at the time. The reforms were praised as an effective way of reducing fraudulent claims and would result in a decrease in insurance premium payments for all motorists.
A host of portals have been created and fixed costs have been imposed for work of low-to-medium value. This has increased the pressure on recovery costs.
They have had a significant impact on overall claims but the proportionate savings to motorists, who are often innocent people and not fraudsters, has not been reflected in a proportionate or even at all. It is disappointing that the predictions of personal injury claimants were right and that the insurance industry went on to make hundreds of millions of dollars for shareholders.
What are the steps required to hire a personal injury lawyer? How can you get justice for your clients?
It can be difficult to choose the right personal injury lawyer to represent your case. The claimant should seek guidance to find a firm they feel is large enough and financially sound enough to handle the claim. The claimant should be allowed to have their claim funded on an “no win, no fee” basis. They should not be required to pay upfront fees.
If Court fees are not covered by a fee remission, you can expect that the firm will be covering these disbursements. The issue fee for larger claims is PS10,000. After confirming that the firm has sufficient standing and has specialist teams dealing with various types of personal injury claims (which can be checked by visiting their website), the claimant may apply for accreditation.
An expert personal injury firm will serve on clinical negligence panels and personal injury panels. The Legal 500 and Chambers and Partners will mention the firm and their particular lawyers. Trustpilot also allows you to leave feedback from clients. If they have several thousand reviews, it is more likely that you can trust their rating.
It is important that both the firm and the lawyers in the firm are members or affiliates of organizations that work for the improvement of the claimant’s situation. I have been a member of Association of Personal Injury Lawyers since many years and have achieved the rank of Fellow. APIL is a great organization that works hard to make a difference for injured people. Express Solicitors is also a member of Association of Consumer Support Organisations. ACSO’s campaigning activities are also very efficient. This has helped to mitigate some of the negative effects of the Reforms. We participate in the research programmes that provide data for the Associations to meet the MOJ.
The claimant should seek out a firm they feel is large enough and well-financed to be able to fully litigate their claim.
These associations are a great way for claimants to know that the personal injury law firm is active and committed to their clients’ success.
Which sources can you trust when trying to prove liability?
Employers’ liability claims can provide evidence that can be used to support liability and causation. First, we need to know if there is CCTV footage of the accident or witnesses. If there is no CCTV footage, we will look for the necessary documentation. This includes a report on the accident or any complaints regarding previous defects or dangerous situations which were not rectified before the accident. If equipment is defective, we will arrange for an engineer to inspect the equipment and give a report to the Court. We need to see any training documentation, records of training and toolbox talks and other such things.
The Health and Safety Executive might have been involved if it was a very serious injury. We would request the HSE report in this instance, which includes their investigation and findings as well as any photos taken during that report. If the HSE finds that the defendant is in violation of certain regulations, this can be extremely helpful in proving negligence.
If the claimant has not provided any evidence, or if the claimant is unable to provide any support for their version of events (e.g., they were on their own at the time their misfortune occurred), then we need to be more creative and use technology to help us get as accurate an image as possible.
We may be able to access data from smart devices, such as smart watches, phones for GPS location and smart phones that can also read vehicle sat-nav data. To determine if there are any changes in the patterns of events, we may analyze data from apps that connect to smart devices. We may also examine text messages, WhatsApp, and other social media to determine if they can help us to identify the location of the accident or the events that followed it. We can also get information about any phone calls made.
If the claimant has not provided any evidence, or if the claimant is unable to provide any support for their version of events (e.g., they were on their own at the time their misfortune occurred), then we need to be more creative and use technology to help us get as accurate an image as possible.
If they were on the scene, the Ambulance Service will report it as evidence. Any subsequent hospital notes that are made afterward will also be good evidence. Google Earth and Street View are great tools. The defendant’s website and social media sites can be helpful if you need to locate a piece of equipment or determine the nature of work that has changed since the accident. Sometimes, ring doorbells or domestic security cameras can be of assistance.
If all else fails you can plead the accident is a matter of fact and let a judge decide based on the witness testimony.
Your clients can suffer life-altering injuries. How should you approach these cases. What other qualities are necessary to help your clients navigate the legal process?
A client with a life-altering injury is different than one where they are expected to make a full recovery in a short time and have no lasting consequences.
A catastrophic injury requires additional skills beyond knowledge of the law.
The lawyer should visit the client and their families as soon as possible. This is preferably with the barrister who will be instructed on the case. To establish trust with the client, their family, and build confidence that their legal team will get the best outcome for their loved ones, the lawyer should go to the client’s home.
At the earliest possible opportunity, the lawyer should visit the client and their families.
It is important to be able to arrange rehabilitation. The claimant will usually be kept within the NHS for a short time, and then the provision of treatment will be gradually withdrawn. Worst-case scenario: The state support is reduced to the point where the claimant or their family is no longer supported adequately. They will have to rely on family and friends to help them pay for private treatment.
Sometimes, one of the spouses who was working at that time will take over as primary carer and quit their job to care for the claimant. This can have a devastating effect on the marital relationship between the spouse and claimant, as they become carer/patient instead of life partners. To avoid this, it is important to seek out external support to help with the majority of the care requirements.
Rehabilitation is one of the best ways to deal with this. In particular for catastrophic claims, defendant insurers are eager to get involved in rehabilitation. It is usually all the claimant has, so they will accept the offer and arrange for treatment. It is best to obtain a substantial interim payment as soon as possible so the claimant can arrange their rehabilitation and cover their private care costs.
If a case manager is needed – which is usually the case with catastrophic injury claims – it is crucial that the claimant and their families have the opportunity to meet the case manager to determine if they are compatible. They have to work closely together. They should also meet with their team, including the speech and language therapist, occupational therapist, and physiotherapist to name a few.
It may be necessary to hire architects and accommodation experts to design homes or adaptations to suit the claimant. A single level of accommodation will use the most recent technology to allow the client some independence. A special design of transport, particularly for wheelchair users, may be required. These are only a few of the concerns regarding treatment requirements, equipment and adaptations.
When looking at the financial aspect, it is vital that claimants receive the best financial advice throughout the process of a claim. This includes looking at entitlements to benefits and considering personal injury trusts, periodic payment orders and investment vehicles. The goal is to make sure that claimants have enough money to support their family for the rest of their lives. If the claimant needs private medical attention, even settlements exceeding PS1 million could quickly be exhausted.
In a case of catastrophic nature, if the claimant is unable to speak, it is likely that a deputy will be appointed and the Court of Protection involved to protect his interests. If a personal injury firm does not offer these services, the lawyer handling catastrophic cases must have knowledge in all of these areas.
The personal injury firm must have access to top-notch medical professionals in their field. These experts can make the difference between a PS1,000,000 and a PS10,000,000 claim depending on how strong they are. These experts can be at the top of their field and will often ask for payment. Sometimes, this is done in advance. The Claimant and their families need to know that the Solicitors they use are willing to fund the expert reports, which can sometimes run into the tens of thousands of Pounds, throughout the duration.
Damian Bradley, Partner
Resolution House, 311 – 319 Palatine Road, Northenden, Manchester, M22 4HH, UK
Tel: +44 01619 044660
Damian Bradleyis an associate and Head of Legal Operations at Express Solicitors, who specialize in claims for employers’ liability. Damian has over 20 years experience as a qualified solicitor. He handles claims arising out of any type of serious injury sustained in an accident at work. This includes brain injuries, spinal injuries and musculoskeletal injuries. Damian is also a Fellow of The Association of Personal Injury Lawyers. He was the North West Coordinator for the group for six years and has been deemed “hugely experience” by Legal 500.
Express Solicitorsis a UK-based specialist law firm that handles personal injury cases. They are ranked among the Top 200 in the UK and many other awards. Express Solicitors has more than 200 lawyers and handles claims in a variety of areas, including work accidents, medical negligence, public liability, and road traffic accidents.