Guide To Motor Insurance Policy Legal Claims
Insurance Services
Welcome to the IM Insurance Service Guide. This is designed to assist new and existing clients in understanding the process of what to do following an accident, and what is involved in the claims process with insurers and solicitors.
If you are an existing client you may be referred to this website for an explanation of medical and/or legal terminology contained in correspondence or reports received by you.
Car Insurance Policies
You must Insure your car for use on the road.
Provided you have a valid insurance policy, your Insurers will deal with any claim made against you in respect of a road traffic accident.
Comprehensive car insurance
If your vehicle is Insured under a Comprehensive policy, your Insurers will arrange to deal with the repairs or total loss payment for your vehicle. They will then attempt to recover whatever they pay out to you from the other party if they are at fault.
You may have a policy excess where you are responsible for the first £50.00, £100.00, £200.00, etc, of any claim in respect of your vehicle and you will either have to pay that sum to the Garage, getting a receipt in the process, or that sum will be deducted from any total loss payment if your vehicle is beyond economical repair.
If your vehicle is covered under a Third Party Fire & Theft policy, your Insurers will only be concerned with the damage to your vehicle occurring as a result of a fire or a theft. They will also be responsible for any claims made against you by the other party.
In addition, your Insurers may require your assistance in other respects such as:-
Reporting any incident which may give rise to a claim as soon as possible (preferably within 24 hours).
Assisting them in attending a Court Hearing to recover any payments they make from a party who they believe was wholly or partially responsible for the accident.
Attending an inquest where someone died in an accident.
Where they decide, at their discretion, to fund the defence of any criminal proceedings, eg, careless driving against you.
It is a condition of your Insurance policy that you must co-operate with your Insurers at all times. If they have paid out for the repairs to your vehicle and they want to recover those monies from the other driver (where the accident was not your fault), Court proceedings may on occasion be necessary and your Insurers may ask you to attend Court to explain what happened. In this instance, your Insurers will usually meet your reasonable expenses. Failure to co-operate may be a breach of your insurance policy.
Third party fire and theft
Your Insurers will agree to deal with any claim made against you as a result of your negligence, subject to you complying with the terms of the policy, eg, notification of an accident, and requests to attend court hearings.
Your Insurers will not assist you in the repair or replacement of your own vehicle, which is your responsibility if the damage did not occur due to fire or theft. Their losses can again be claimed as part of any uninsured loss claim directly against the responsible party. For more information take a look at Motor Legal Protection Policy.
Your Insurers will, however, assist you in the repair or total loss payment for your vehicle if the damage arose as a result of a fire or theft, subject to your policy conditions. The maximum amount payable by your insurer for your vehicle will be the market value at the time of the loss or damage.
To make an uninsured loss claim, it is preferable you:-
Obtain a repair estimate or pro-forma account, showing the extent of the vehicle damage.
Obtain a letter from the Garage confirming the vehicle is beyond economical repair (total loss) - if applicable.
Ensure you do not accumulate excessive storage charges - if the vehicle is being stored by a Garage or otherwise.
Keep all receipts in relation to any expenditure, eg, towing costs.
If you need your vehicle for work, mitigate your loss by arranging alternative
Where you may be at fault
You must contact your insurers immediately and report the full circumstances to them.
The insurers may, at their discretion, and depending on the terms of your policy with them;
arrange for free legal representation when you are interviewed by the Police.
arrange for free legal representation when you are called to the Inquest.
arrange for free legal representation at any subsequent court hearing.
Criminal Proceedings - Where I am accused of causing the accident
What are they?
Road Traffic Offences as defined under the Road Traffic Acts and other relevant legislation.
What will happen?
The Police will carry out enquiries as to who caused the accident.
If they believe they have sufficient evidence to convict you of a criminal offence they will refer the papers to the Crown Prosecution Service.
The Crown Prosecution Service will decide whether or not you are to be charged with any offence. The usual offences are:-
The Police will carry out enquiries as to who caused the accident.
Careless driving.
Dangerous driving.
Causing Death by Dangerous Driving.
What can I do?
Take photographs of the accident site.
Take photographs of the damage to all vehicles involved in the accident.
Get the names and addresses of as many witnesses as possible.
Consult a solicitor.
Where you may be at fault for the accident
You must contact your insurers immediately and report the full circumstances to them.
The insurers may, at their discretion, and depending on the terms of your policy with them.
arrange for free legal representation when you are interviewed by the Police.
arrange for free legal representation when you are called to the Inquest.
arrange for free legal representation at any subsequent court hearing.
The Police will interview you under caution and advise you of your right to legal representation. The most serious offence that you can be charged with is Death by Dangerous Driving. The maximum penalty for this is a term of imprisonment and you are therefore strongly advised to request the presence of a solicitor.
What will happen if I am convicted of an offence?
A range of penalties may be imposed.
Points on your driving licence.
A fine.
There is the possibility of you being disqualified from driving.
Certain offences carry a penalty of a term of imprisonment.
Legal Expense Insurance/Motor Legal Protection
In addition to your compulsory car Insurance, you may have taken out a policy which covers you for Legal Fees if you have suffered a loss which is not covered by your standard car Insurance policy.
Examples of these losses can be personal injury, hire charges, loss of earnings and medical treatment fees.
Your Insurers may put you in touch with a Specialist Firm of Solicitors who will provide full guidance on what to do when bringing a claim for compensation.
The policy itself will only be active if:
The accident was not your fault.
There are reasonable prospects to recover damages from another party.
The Legal costs in pursuing your losses will be proportionate to the sum to be recovered.
There is a limit to the amount of costs cover applicable. It is usual that cover can be extended to occupants of your vehicle, eg, passengers who may have suffered similar losses. As per the compulsory Insurance policy, you must co-operate with all reasonable requests made by the insurers or your solicitors.
Reasonable prospects
Your Motor Legal Protection Policy will apply if your Insurers or advising Solicitors consider you have a reasonable chance of Legal proceedings being successful.
This decision is normally dictated by:
An assessment that you will succeed on liability by achieving a better result than the proposal on offer or;
There are reasonable prospects to recover damages from another party.
An assessment that monetary recovery can be made from a potential Defendant, taking into account that party's financial means or Insurance.
Your Insurers can usually withdraw cover in circumstances where either one of the above criteria are unlikely to be met. If you do not agree with this decision, you are usually at liberty to obtain a second opinion and any such decision by your Insurers or Solicitors will be made, usually in writing, providing full reasons for their view.
Passengers
It is usual that your Motor Legal Protection Policy will also cover personal injury claims made by other occupants of your vehicle, eg, passengers either in or alighting from your vehicle.
The policy definition on who is covered usually includes the driver or any other occupant of the vehicle.
Your Insurers, subject to acceptance of a claim, should agree to pay for legal costs in pursuing any such claim under this policy.
If the driver of the vehicle was responsible for the accident, the Insurers may be at liberty to refuse cover for any claim made by passengers or other occupants of the vehicle for personal injury. Enquiry should however always be made with the Insurers to check what cover is available.
After the road traffic accident
The following may occur after a road traffic accident:
Injury to another person.
Damage to someone else's vehicle or property (eg, garden wall).
Death or injury to an animal (an animal being defined as horse, dog, sheep, pig, goat or cattle).
If you do not exchange your details at the scene of the accident, you must go to the Police Station immediately, and certainly within 24 hours
However, where injury is caused to another person, then in addition to reporting this to the Police, you must also produce your Certificate of Insurance within 7 days of the accident.
If you fail to take the above action, you may be committing one of the offences below.
Failing to stop after the accident.
Failing to report an accident.
Information to collect
After a road accident has occurred, you must stop and remain at the scene for a reasonable period of time. Details must be exchanged with the other party involved.
Important information is
The make, model and registration number of the other vehicle.
The name, address and all telephone numbers of the other party.
Any insurance particulars the other party can provide, hopefully involving the name, address and policy number.
The extent of damage to the other vehicle.
Whether any injuries are apparent and if so, a description of those injuries.
Full names, addresses and telephone contact numbers of any witnesses, either independent or passengers in vehicles.
The exact date and time of the accident.
The exact location, including street name.
Other information which may be of assistance
The colour of the vehicles.
The name and address of the owner of the other vehicle, if different from the driver.
If the Police attend, the name and number of the reporting officer and details of his local station.
Report information to your insurer
It will be a condition of your insurance policy that you must notify your insurers as soon as possible after an accident has occurred.
You must notify your insurer whether or not you intend to make a claim. A claim may be made against you, regardless of your intentions.
You can report an accident to your insurers for information only.
Reporting an accident to your insurers must be done in accordance with their policy conditions. This is usually by telephoning their number and speaking to one of their Claims Administrators.
When somebody dies in an accident - Inquests
What are they?
When someone dies as a result of a road traffic accident an inquest will be held by the Coroner (a type of Judge) to determine the manner in which that person died.
The procedure for the Coroner is laid down in the Coroners rules.
The Coroners office, together with the police, will carry out an investigation into the accident circumstances.
There will be hearing, called an Inquest, where the coroner will call people to court to give evidence of what they saw relating the accident, for any Doctors to give evidence of treatment given to the deceased and for the Pathologist to give the details of the medical causes of death.
The purpose of the inquest is not to apportion fault for the accident, but to determine the cause of death and for the Coroner to declare a verdict.
The usual verdict returned for road traffic accidents is "accidental death".
Where are they?
At the nearest Coroners Court to where the deceased died
Where a member of my family dies
Coroners Courts are open to the public and anyone can sit in the court to hear the evidence.
If you were the last person to see the deceased alive you may be required to give evidence of how they were when you last saw them.
Where you may be at fault for the accident
You must contact your insurers immediately and report the full circumstances to them.
The insurers may at their discretion and depending on the terms of your policy with them
arrange for free legal representation when you are interviewed by the Police
arrange for free legal representation when you are called to the Inquest
arrange for free legal representation at any subsequent court hearing
The Police will interview you under caution and advise you of your right to legal representation. The most serious offence that you can be charged with is Death by Dangerous Driving. The maximum penalty for this is a term of imprisonment and you are therefore strongly advised to request the presence of a solicitor.
Where police may prosecute
What are they?
Road Traffic Offences as defined under the Road Traffic Acts and other relevant legislation.
What will happen?
The Police will carry out enquiries as to who caused the accident.
If they believe they have sufficient evidence to convict you of a criminal offence they will refer the papers to the Crown Prosecution Service.
The Crown Prosecution Service will decide whether or not you are to be charged with any offence. The usual offences are:-
The Police will carry out enquiries as to who caused the accident.
Careless driving.
Dangerous driving.
Causing Death by Dangerous Driving.
What can I do?
Take photographs of the accident site.
Take photographs of the damage to all vehicles involved in the accident.
Get the names and addresses of as many witnesses as possible.
Consult a solicitor.
Where you may be at fault for the accident
You must contact your insurers immediately and report the full circumstances to them.
The insurers may, at their discretion, and depending on the terms of your policy with them.
arrange for free legal representation when you are interviewed by the Police.
arrange for free legal representation when you are called to the Inquest.
arrange for free legal representation at any subsequent court hearing.
The Police will interview you under caution and advise you of your right to legal representation. The most serious offence that you can be charged with is Death by Dangerous Driving. The maximum penalty for this is a term of imprisonment and you are therefore strongly advised to request the presence of a solicitor.
What will happen if I am convicted of an offence?
A range of penalties may be imposed.
Points on your driving licence.
A fine.
There is the possibility of you being disqualified from driving.
Certain offences carry a penalty of a term of imprisonment.
Accident responsibility
What about liability
Liability simply means, who is responsible for the accident?
What the other party tells their Insurers is important.
If the other party or their Insurers are unwilling to accept full responsibility for the incident, then there is a liability dispute.
It will then be necessary for you to prove the other party was at fault. This is usually done by providing witness evidence, preferably from an independent witness.
It is important that you keep any witness contact details, no matter how straight forward you feel the circumstances are.
On occasions, a detailed plan and photographs of the accident scene can help, as can photographs of the area of damage to the respective vehicles.
Sometimes, following review of all the evidence, it may be that both parties are partially to blame and settlement on a split liability basis occurs. This can be apportioned on any percentage, i.e. 50/50.
50/50 - What does this mean?
This means that both drivers are held to be equally responsible for the accident. If you have a claim for £100.00, you will receive £50.00.
Similarly, if you are held 75% responsible, you would receive £25.00, if claiming £100.00.
Any payment made when you are partially responsible for the accident may affect your no claims bonus.
No Claims Bonus
It is usual that any apportionment of liability other than 100% in your favour, will mean your no claims bonus will be prejudiced unless it is protected. In that event it is subject to your Insurer's policy conditions.
If agreement of liability cannot be reached with the other party it may then be necessary to commence legal proceedings. It is for a Judge to look at all the evidence and decide who is at fault.
Liability summary
It is up to you to prove that the other party was at fault.
If a dispute occurs, then evidence is required such as - independent witnesses, passenger witnesses, sketch plan and photographs, full statements from all the parties, the area of damage to the vehicles.
Did Police attend and take statements? If so what was the officer's name, number and station?
Any apportionment of liability will mean whatever you claim will be reduced accordingly.
Your no claims bonus may be affected if you settle for less than 100%.
You should always liaise with your Insurers before agreeing to accept any blame for the accident.
Motor Insurers Bureau
What is The Motor Insurers Bureau (MIB)?
It is an independent body financed by all Motor Insurers to deal with claims against uninsured drivers.
The MIB can deal with claims in the following two scenarios:-
Compensation for victims of uninsured drivers.
Compensation for victims of untraced drivers.
Take a look through this section, however if you wish to obtain further information about the Motor Insurers Bureau please visit their website.
Uninsured drivers agreement
This agreement provides compensation in respect of:-
Personal injury and consequential loss. Property damage (usually car damage). Any claim for property damage is subject to a deduction of £300 excess. No excess applies to accidents after 7 November 2008. This excess will have to be recovered from the uninsured party directly if they have sufficient funds. The Motor Insurers Bureau will attempt to recover any monies paid out from the uninsured party. If you recover your losses in full from the Motor Insurers Bureau, your no claims bonus will not be affected. Court proceedings must be issued in line with Limitation rules (3 years from the date of the accident for personal injury and 6 years where no injury is being claimed).
Untraced drivers
Where you are involved in an accident with another vehicle but details of the other vehicle's driver are not known or false, the Motor Insurers Bureau will consider a claim for compensation under the Untraced Drivers Agreement.
If the accident occurred before the 14th February 2003, the following points are relevant:-
The MIB will deal with personal injury claims and any associated loss such as loss of earnings.
Any injuries sustained as a result of a road traffic accident where the other party is unknown, must be reported to the Police within 14 days of its occurrence.
As soon as you are aware the other driver's details may be false, it is suggested the Police be notified.
A claim against the Motor Insurers Bureau may also involve incidents from oil or diesel spillages on the road or dazzle cases, if it can be proven the incident occurred as a result of a vehicle driver's negligence.
All claims must be reported to the Motor Insurers Bureau within a 3 year period, unless the claim involves an infant or a person under disability.
Where the accident occurred after the 14th February 2003, all the above points are relevant other than
If the offending vehicle has been identified even if the guilty party is untraced (eg, fleeing the scene), property damage in addition to personal injury compensation can also be included. The MIB will deduct an excess of £300 from property damage claims.
The incident must, however, have been reported to the Police within 5 days of its occurrence.
How is the claim made?
The first step is to make all necessary enquiries, to be certain the other party is uninsured or untraced.
If that criteria can be satisfied, an application form will be filled in. The MIB will then investigate matters as if they were the Third Party Insurer.
You cannot make a claim against the Motor Insurers Bureau if your own vehicle was uninsured at the time.
The Motor Insurers Bureau will confirm receipt of the Form within 21 days and provide you with an initial assessment.
Even uninsured motorists have the right to deal with their own affairs and any application to the Motor Insurers Bureau will not permit them to ignore his /her rights. If, however, the uninsured motorist does not co-operate, the MIB may decide to deal with the claim in any event or ask for proceedings to be taken.
If proceedings are issued, this must be done within 3 years from the date of the accident if personal injury is involved - if personal injury is not involved, the proceedings must be issued within 6 years from the date of the accident
Despite the other party being uninsured, liability can still be contested.
Injury claims, including loss of earnings, are subject to a legal obligation on the MIB to refund to the DSS any benefits that have been paid as a result of the accident and that sum to be deducted from any loss of earnings claim.
What is required under the Untraced Agreement?
Any injuries sustained as a result of a road traffic accident where the other party is known, must be reported to the Police within 14 days of its occurrence (or 5 days if property damage will form part of the claim should the accident occur after the 14th February 2003).
All claims to be active under the Untraced Agreement must be reported to the MIB by completion of a Form (pink) within a 3 year period unless the claim involved an infant or a person under disability.
Proceedings are not issued under the untraced agreement but an appeal process is in place once the Motor Insurers Bureau determine the level of any award.
The MIB will contact the Police to obtain a copy of any Report, unless that has already been provided.
Foreign claims
The Motor Insurers Bureau operates an information centre regarding the insurance of foreign registered vehicles.
The MIB will assist in locating the identity of a foreign Insurer and can assist in the service of proceedings, provided the driver is identified. It is imperative that the correct vehicle registration number must be given for the foreign vehicle.
For accidents overseas
Different legal systems are in force and may effect:-
Level of damages.
The time period in which proceedings can be issued.
What you can and cannot claim.
Liability may be determined by the Police at the accident scene.
It would be of assistance if photographs could be taken of the location of the vehicle and any damage.
The 4th Motor Directive
This came into force on the 20th January 2003. The Directive provides:-
Level of damages.
Each European Member State to have an Information Centre.
The Information Centre should be able to provide the Motor Insurer's identity for each registration number given.
With this, you should be able to track the foreign Insurer through the vehicle registration number and have English dialogue with either a UK handling agent for the foreign insurance company or in some cases with the MIB acting as the handling agent themselves.
The procedure:
We will write to the other Insurer with details of the claim, having gathered their details from the Insurer Database.
The Insurers or their Agents have to supply a reasoned response to the points made within 3 months.
If they do not do this within the time scale, you can then contact the Motor Insurers Bureau, who then have 2 months to offer or settle the claim.
In the event that proceedings are required, there is now a direct right of action against the Insurer involved rather than having to issue Court proceedings against the responsible driver.
What can I claim?
Compensation is usually split into:
Special damages
General damages
Future losses
You must always remember that it is your duty to keep your losses to a minimum. Even though responsibility for the accident may be accepted by the other party, significant disputes can still arise in dealing with claims because the other party considers you could have taken steps to prevent the escalation of costs.
Special damages
These are your out of pocket expenses which can be easily quantified and usually supported by documentary evidence. Eg, car hire charges, taxi receipts, estimate and final accounts showing vehicle repairs.
It would be helpful if you could keep a chronological list of your out of pocket expenses, including specific amounts and dates.
General damages
This is a financial award which is intended to compensate you for your pain, suffering and inconvenience. The compensation is assessed by considering previous, similar cases and reviewing the Judicial Studies Guidelines.
Future losses
Where your injury has left you with a permanent disability you may be able to claim for future financial losses if evidence can be provided.
Car damage
If your vehicle is comprehensively Insured, your Insurers will usually deal with the repairs or total loss.
If you have a policy excess, this can be claimed as an uninsured loss.
Third party fire & theft
We would suggest you obtain an estimate showing the extent of the damage. It may be necessary for either your representative or the other side's Insurers to arrange for an engineer to assess the damage in line with that estimate. If the vehicle is beyond repair, the market value guide will be assessed by an Engineer. It is usual for you to retain the vehicle and dispose of it once the value has been agreed.
If the vehicle is repairable an account can be submitted to the other Insurers who will be asked for a settlement cheque subject to liability, etc.
Towing and storage charges
Towing accounts are very rarely disputed.
Storage charges are, however, something which can accumulate and need to be kept in check. If storage charges are accumulating, it is imperative that steps are taken to place the vehicle into free storage.
Credit hire/hire charges/loss of use
Hire charges
If your vehicle is off the road and you need a vehicle, hire car charges can be claimed subject to your duty to keep your losses to a minimum.
Loss of use claims
If you are able to get by without a vehicle, then payment can be made to cover the loss of use of your vehicle.
The figures are usually between £50.00 and £70.00 per week.
Credit hire
You may be offered an alternative vehicle whilst your car is being repaired by a credit hire company. You will be asked to enter into a hire agreement with them whereby they will defer payment of the hire charges for a period of time. After your vehicle is repaired they will seek to recover the hire costs from the third party. If they are unsuccessful in recovering these costs in full you may be personally liable for the shortfall. Credit hire agreements give you personal responsibility for payment and any shortfall/loss cannot be claimed from your insurers. Care should be taken when entering into these agreements.
Other expenses
Taxi receipts, public transport, loss of road fund tax, clothing and personal effects. It is good practice to retain any receipts to support this loss.
Loss of earnings
If you are off work due to having no car, it is your duty to minimise your loss, for example, obtain a replacement vehicle or use public transport.
If you are off work because of the injuries that you have sustained, evidence will be required from your employers that you have suffered loss of earnings.
If you are self-employed, it is usual to provide your accounts and tax records. This can usually be dealt with by your Accountant.
The Compensation Recovery Unit - CRU
How do Social Security Benefits affect any compensation?
The Government is entitled to recover any State Benefits and NHS Treatment charges from the party who was at fault for the accident.
If you are off work or disabled by any injury, you may be able to claim Social Security Benefit.
If you are claiming any such Benefits, certain kinds can be deducted from your compensation payment.
You will be required to provide details of your employer, your date of birth and your National Insurance Number, together with brief details of your injuries.
The CRU will issue a Certificate for the amount it wishes to recover.
The Benefits which can affect your compensation are, but not limited to:-
Disablement Benefit
Income Support
Invalidity Benefit
Mobility Allowance
Statutory Sick Pay
Unemployment Benefit
Sickness Benefit
Disability Living Allowance
Disability Working Allowance
There is the possibility that the level of compensation may affect your entitlement to future Benefits
This entitlement may be protected by the provision of a Special Needs Trust. Please contact our office to obtain further details if required.
Personal Injury
General damages
This is the term used by the Court and your solicitors to show the amount of compensation you are to receive for your personal injuries.
What does it include?
If the other party is found to be at fault for the accident you are entitled to claim compensation for all injuries caused by the accident. This may be an aggravation of an existing medical condition or it may be new injuries caused by the accident.
Any form of bodily injury.
Psychological/psychiatric injury as defined under the ISD and DSM criteria.
What am I required to do?
You will usually be required to undergo a medical examination by a Doctor who specialises in injuries of the nature you sustained.
If you have multiple injuries you may be required to attend more than one examination.
You will need to give the solicitors and medical experts access to your medical records.
How are the damages for personal injury calculated?
If you have made a full recovery:
When the medical report is received your solicitor will compare the injuries you have sustained with other similar court cases and the Judicial Studies Guidelines. From these they will place a value upon them.
If you have not made a full recovery:
The Doctor will be asked to give an opinion as to what he believes will happen with your medical condition in the future.
Based upon the Doctors opinion your solicitor will compare the injuries you have sustained with other similar court cases and the Judicial Studies Guidelines. From these they will place a value upon them.
If the valuation cannot be agreed with the other party a Judge will be asked to make the assessment.
The amount of compensation people receive following a road accident varies depending on individual circumstances, but for an idea of what you may be able to claim, read our guide to compensation amounts .
What is Whiplash?
Whiplash is the neck sprain that is usually sustained in a rear end car accident.
No one asks for a whiplash injury - they are nearly always a surprise and rarely the fault of the victim.
But they are very common. In fact, there are around 260,000 whiplash injuries every year in the UK.
Most cases of whiplash are minor and heal within a few weeks with the proper care, however some whiplash injuries lead to long term discomfort.
Symptoms
Whiplash consists of some classic symptoms. Sometimes these symptoms occur immediately after the crash but can also take a few days to develop and occasionally they may take weeks or even months to appear.
Below is a list of the most common symptoms:-
Headache
Neck pain
Dizziness
Shoulder pain
Jaw pain
Arm pain
Medical Experts
Medical experts are instructed to examine you and provide a written report for the court which details the injury you suffered from, your condition at the time of examination by them and their prognosis (opinion) on when and if you will make a full recovery from those injuries. In forming the opinion they may consider your medical records, assess whether there are any pre-existing conditions that affect or will affect your current condition and their findings at the time of the examination.
During the course of the examination they will ask you what injuries you suffered from, what effect those injuries have had upon your life (in terms of what they have prevented you from doing that you would normally have done), what medication you have had to take and what level of pain you have been experiencing and/or continue to experience. It is important that you answer these questions truthfully. If you feel that you may be nervous and forget some of these issues then we would recommend that you take a written record with you.
This medical report will be the evidence that will be relied upon in assessing the compensation that is due to you for your personal injuries. You will be required to confirm to the court that the medical report is accurate.
Medical experts have different specialities and if you are suffering from multiple injuries you may be required to be examined by more than one expert.
The medical experts are independent and their primary duty in preparing their report and giving evidence in court, is to assist the court. This duty overrides any obligation to the person from whom he or she has received instructions or by who he or she is being paid. If the report is not clear or there are elements within the report that you do not agree with then questions can be put to the medical expert to clarify the opinion. Part 35 of the Civil Procedure Rules sets out the procedure and practice to be adopted by the medical expert.
If you require further details on the duties of an expert to the court please take a look at the Lord Chancellor's Office information on Part 35 of the Civil Procedure Rules.
Personal injury protocol
This is the court action protocol set out within the civil procedure rules to try and assist the parties in reaching a negotiated settlement without having to issue court proceedings. The aim of the protocol is to give better and earlier exchange of information, allow better pre-action investigation by both sides, to put the parties in a position where they may be able to settle cases fairly and early without litigation and if proceedings do become necessary to run to the court timetable efficiently.
Wherever there is to be a claim for personal injury as a result of a road traffic accident this protocol must be followed. If either party fails to follow the protocol the court may impose financial sanctions against the offending party.
In summary the following procedure has to be adopted:-
A letter of claim has to be sent to the other party providing a clear summary of the facts upon which the claim is based, details of the injuries suffered and a summary of the financial loss incurred.
The other party should reply within 21 days identifying their insurer and will then have a maximum of three months to investigate the claim. By the end of that period they should reply stating whether liability is denied and if so giving reasons for their denial of liability.
Where liability is admitted and the total value of the claim is below £15,000 there is a presumption that they will then be bound by that admission. Upon receipt of the admission you will need to send to the other party as soon as it is practical, a schedule of special damages with supporting documentation. Similarly as soon as your medical report is received this will need to be sent to the other party in order that they can assess your general damages.
Where the other party denies liability they should enclose with the letter of reply all documents in their possession which are material to the issues between the parties and which would be likely to be ordered to be disclosed by the court.
If after negotiation no agreement can be reached on either liability or the amount of damages to be paid to you proceedings will be issued on your behalf in the County Court see the litigation procedure.
Why negotiate?
Generally, negotiating with the other side's Insurers can bring your claim to an end more efficiently than by resorting to further legal proceedings.
There is a requirement under the Civil Procedure Rules to follow guidance set out under the Personal Injury Protocol.
The issue of proceedings should be seen as a last resort and you will need to show to the Court all reasonable attempts have been made to negotiate your claim before suing the other party.
Negotiations can be by letter, telephone call or face to face meeting.
Negotiations can sometimes take weeks or months. It may be the other Insurers or Solicitors need to take further instruction from their own customer on points put forward by you.
If the other driver's insurers are delaying matters, or their offers are unreasonable, then court proceedings are the best way to move your claim forward
If ever an offer is made by the other party, we may need to take your instruction even though we may consider the offer unreasonable. We will, however, provide you with our advice on whether to accept or reject the proposal.
Part 36 Offers
A Part 36 offer refers to Section 36 of the Civil Procedure Rules.
The idea of a Part 36 offer is to allow either party the chance to make offers on any basis, both before or after the issue of proceedings. If before proceedings, you are prepared to accept settlement on a 50/50 basis, we can write to the other party suggesting 50/50 and making this proposal on a Part 36 basis.
Similarly, if we have a Medical Report and value the level of compensation at say £2000.00, we can write to the other party making a Part 36 offer of £2000.00 to settle your claim.
The other side have 21 days, from the date they receive the offer, to accept or reject this proposal.
If they accept it, they will be bound by the terms of that proposal. If they reject it and at a later date an award either at Court or by agreement is made equal to or greater than the earlier Part 36 offer made, then the other party will have to pay additional costs and possibly interest.
Litigation Procedure
Where Court proceedings have been issued because we have been unable to negotiate settlement with the other parties insurers.
The time period
Where you have suffered a personal injury court proceedings must be brought within 3 years of the date of the accident.
In cases where there is no injury, court proceedings for monetary losses only must be brought within 6 years of the date of the accident
The court
Proceedings are issued in the County Court.
If the proceedings are not issued in the home court of the party defending the claim they are usually transferred to the Court closest to the defending parties home address.
The Compensation Recovery Unit - CRU
This is the compensation recovery unit (CRU).
The government is entitled to recover any state benefits and NHS treatment charges from the party who was at fault for the accident.
The CRU will issue a certificate for the amount it wishes to recover.
You will be required to provide details of your employer, your date of birth and your National Insurance number.
The court hearing
If negotiations have failed to achieve terms of a settlement the matter will be listed for a Hearing, where you will be asked to attend.
This type of Hearing will usually be a final Hearing where all the evidence is put before a Judge who will decide on the facts presented.
This type of Hearing will usually be in two forms:-
a. Small track hearing.
b. Fast track or multi track.
Small track hearing
The Court may adopt any method of proceeding at a Hearing that it considers to be fair.
Hearings will be informal.
The Judge can have full discretion on what rules of evidence should apply.
the Judge may decide not to take evidence on oath.
A limit to any cross examination may be imposed by the Judge, but reasons for such a decision will be given.
Small Claims Hearings are relatively informal and usually held in the District Judge's Room, with the parties sitting around a table, being asked at various stages questions by either their own representative, the other party's Representatives (cross examination) or the Judge.
The court also applies proportionality to the proceedings as Small Claim Hearings are usually for lower value sums. Consequently, there is a limit to the expenses which can be claimed:
a. A contribution of £50 for any loss of earnings by a party or witnesses to attend the hearing. There must be evidence this sum has been lost.
b. Expenses which you or a witness have incurred in travelling to and from the Hearing. Again, there must be evidence of this expenses and it must be reasonable.
It is usual to meet your Legal Representative at Court a short time before the Hearing for a brief discussion about what will happen.
Fast or multi track hearings
The Judge will generally have read all the papers which will consist of your Statements and all evidence from any Experts being used.
The Hearing itself is more formal than the provisions of a Small Claims Hearing but again, the Judge will be allowed to control evidence and restrict cross examination.
You will be asked to attend the Hearing shortly before the commencement time for Conference with the appointed Legal Representative (usually the Barrister).
The allowance for costs and expenses are more favourable than the Small Claims Hearing but must again, be reasonable and supported by evidence where available.
The barrister
It will be usual for a Barrister to be appointed to conduct the Hearing on your behalf. Your lawyer will appoint a Barrister and provide him with all the necessary information. The Barrister will be familiar with the case and be able to discuss matters with you beforehand. It is not usual for the Barrister to discuss evidence to be given by any witnesses which may have been called to assist your case.
The final decision
The Judge, on hearing all the evidence, will usually summarise the party's cases and provide his Judgment. It is usual for the Judge to provide a time period for monies to be paid and thereby, satisfy the Judgment.
If Judgment is not satisfied, then Enforcement proceedings can be taken to recover the sum due.
Enforcement of a Judgment
Whilst not strictly an Enforcement procedure, this is a method of finding out the debtor's financial position to determine what will be the best option for enforcement.
The Court will ask the debtor to fill in a Form or attend Court to give full details of his financial position to determine how best the Judgment should be satisfied.
Bailiffs (Warrant of Execution)
The Court will issue an Order for Bailiff's to attend the debtor's home to seize goods and sell at auction to pay a Judgment debt.
Charging order
If the debtor has equity in a property, the Court may allow that an Order be placed that should that property ever be sold, a proportion of the money over and above any other debts to be paid off be ascribed to settling your Judgment.
Garnish order
The Court may order any money in a debtor's Bank Account to be diverted to pay the Judgment.
Attachment of earnings
Where the debtor is employed, the Court may ask the employers to pay a set weekly/monthly amount to pay the Judgment.
There is a cost for all the above procedure and on occasions, the cost in taking this action may well match or even exceed the sum to be recovered.
Children's claims (Minors)
The main rule relating to claims involving children is that no claim is valid without the approval of the Court.
Under the Limitation Act 1980, the time periods for bringing claims are:-
Claim involving negligence leading to personal injury - 3 years
Claim involving negligence but no personal injury - 6 years
If, however, a person is under the age of 18, the above Limitation periods do not start to run until the child reaches his or her 18th birthday.
In general, a child with an injury will have until their 21st birthday to bring a claim.
Litigation friend
A child is not in a position to pursue a claim on his/her own behalf so someone is appointed to be that child's Litigation Friend.
A Litigation Friend will be somebody close to or related to the child, eg, mother, father, but must:-
Act fairly and competently conduct the proceedings on behalf of the child.
Have no interest adverse to that child.
Undertake to pay any costs which the child may be ordered to pay in relation to those proceedings.
Must not have any potential liability in the incident from which the claim derives (eg, mother driving child and collides with the rear of the preceding vehicle. The child suffers injury but the mother cannot act as Litigation Friend).
Claim Process
A suitable Litigation Friend is appointed.
Details of the injuries to the child are sought and medical evidence prepared.
Negotiations with the other side take place and a final figure agreed.
Court proceedings are issued:
A Hearing date is given which may only last 10/15 minutes when the child, the Litigation Friend and Legal Representative attend the Court for the Judge to review the medical evidence and confirm the figure proposed is appropriate. The Judge usually likes to see the original Birth Certificate at the Hearing.
Dependent on the sum awarded, the Court usually makes provision for the compensation to be invested and paid out to the child when the child attains 18 years of age.
It is possible for a request for an interim payment to be made at the Hearing if the Court accepts it is in the child's interest to do so.
Fatal accidents
The accident does not have to be immediately fatal. The death must, however, be shown on the balance of probabilities to have resulted from the other sides negligence. A claim may also arise where the accident causes psychological injuries to a person leading them to commit suicide.
There are two types of a claim that may be brought:-
Claims under the Law Reform (miscellaneous provisions) Act 1934
Claims are brought by an administrator or executor of the estate and the damages recovered are for the benefit of the Deceased's Estate.
Damages under the Act will cover things such as general damages for pain and suffering should the Deceased not have died immediately, special damages (such as loss of earnings prior to death, damaged property, costs of care and attention prior to death, medical and travel expenses) and funeral expenses incurred by the Deceased's Estate.
Claims under the Fatal Accidents Act 1976
Claims can be brought by "dependents" as set out in the statute. Proceedings are normally brought on by the administrator/executor on behalf of the dependents. If there is no executor or administrator then the action may be brought by all or any of the dependents. In summary "the dependents" are a wife or husband of the deceased, a cohabitee who has been living with the deceased for more than two years as a husband or wife of the deceased, a parent or ascendant of the deceased, a Child or any of the descendants of the deceased, any person who by a marriage to which the deceased was at any time a party and has been treated by the deceased as a child of the family, any nephews, any nieces and cousins.
Damages cover
Negotiations with the other side take place and a final figure agreed.
Court proceedings are issued:
The loss of financial support (ie the loss of dependency on the earnings or other income of the Deceased).
The loss of dependency on the deceased's services (i.e. in gardening, the maintenance, care etc).
Claim for statutory bereavement damages (currently £10,000).
Funeral expenses if paid for by the dependents.
Only one claim, on behalf of all parties, may be brought against the other party.
The practice direction to Part 16 of the Civil Procedure Rules sets out what must be included by a claimant in the particulars of claim when bringing a fatal accident claim.
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