PI compensation question

Mummytuddles

Hi all, this is my first time here as a poster! I usually just lurk in the background gaining information to many if my queries . But the day is here when I need some assistance

In Oct 2012 my car was smashed into and written off my a woman in a wrong lane and on her mobile phone ( texting ) she slammed into the side of my car and by pure miracle just missed my 3 year old by a matter of inches however he still won't travel in a car! Which is a bit rubbish, luckily it was a large family car! Anyway it has taken until now for me to receive any settlement. I was quite badly hurt in the accident unlike some people who would milk it! Anyway, I went with your lawyers, on a no win no fee basis. And my question is, as the law has now changed will I still have to pay the success fee or can your lawyers still claim those costs from the defendant?

It was a simple case with the lady admitting full liability from the start so not much battling done or anything.

I today recieved an email stating I will receive a sum of £3,450 if I accept before 31/03 and it seems to say I will receive 100% but I'm un sure! I'm sorry I stay at home a lot with my 3 children under 5 one of whom is a newborn! And my other half works away so I suffer with lack of adult conversation haha. I am more than happy to copy and paste what the email says if anyone fancies checking it out for me

Many thanks in advance

Laura

Mummytuddles

I'm the OP and for reference here is the copied and pasted information from the email I received I apologise in advance for it's length!

" Re: Your accident on 18th October 2012

I have now received a letter from the Defendant putting forward a formal offer of settlement to you in the sum of £3450.00. This offer is made by way of Part 36 of the Court Rules and is intended to be in full and final satisfaction of your claim (including interest).

Part 36

Part 36 of the Court Rules relates to a formal offer of settlement which can be later relied upon by the Defendant in relation to costs. I expect that the offer is made on the basis of what the Defendant believes you will achieve if the matter proceeded to Court.

The offer is open without costs consequences for a period of 21 days. Thereafter it may be accepted unless withdrawn but the recovery of your legal costs is limited up until the expiry of the 21 day period that is until 31/03/2014.

As the Defendant is represented by an insurer and not a solicitor at the time of the offer is accepted, even if accepted outside of the 21 day period, they will not be able to recover costs from you as they will have no ‘legal costs’ to recover. Should the Defendant instruct Solicitors they will be able to claim their costs from the point of instruction (if that is after the 21 day period) or from the expiry of the 21 day period (if instructed prior to the expiry of the 21 day period) should you accept the offer ‘out of time’. This does not change the fact that the recovery of your legal costs will be limited up until the expiry of the 21 day period.

If you reject the offer and later decide to accept the offer or accept a lower amount than the offer outside the relevant period then you are liable for our fees and disbursements together with your opponent’s fees and disbursements after the expiry of the 21 day period on 31/03/2014. Equally, if you accept the offer after the expiry of the 21 day period on 01/04/2014 you are liable for our fees and disbursements together with your opponent’s fees and disbursements after the expiry of this 21 day period until the date of acceptance.

These costs penalties also apply where you achieve a less advantageous settlement than the sum offered by the Defendant. However, if you are acting in accordance with our advice and comply with our agreement, although you are liable for our fees and disbursements together with your opponent’s fees and disbursements, should you fail to achieve a more advantageous settlement than the sum offered by the Defendant, your After the Event Legal Expenses insurance policy will cover the Defendant’s fees and disbursements and our own disbursements. In addition, our CFA states that we cannot charge you as long as you act in accordance with our advice and comply with our agreement and your After the Event Legal Expenses Insurance policy will cover your opponent’s costs and our own disbursements.

I must also advise you that there is always a risk that the Defendant’s Part 36 offer may be amended to make it less favourable to you or withdrawn completely after the 21 day period. However, within the 21 day period, the Defendant would need the permission of the court to amend the offer.

Please note that as the Defendant’s offer is open without costs penalties until the 31/03/2014, should I not receive your instructions in respect of the offer prior to this date and you later decide to accept the offer, then you will be liable for our fees (i.e. our costs and disbursements) as well as the Defendant’s fees after the expiry of their offer. This will not be covered by your After the Event Legal Expenses Insurance as you have not provided timely instructions.

Funding Reminder

As you are aware we have agreed to deal with your claim on a ‘no win, no fee’ basis which means that we will only be paid by the Defendant if your claim is successful. One of the conditions of the ‘no win, no fee’ agreement is that you must have continuing prospects of success which includes the prospects of beating any Part 36 offer.

The ‘no win, no fee’ agreement only relates to your legal costs and does not cover disbursements (fees paid on your behalf such as Court Fees and the cost of medical evidence) nor does our agreement cover your opponent’s costs.

You have a policy of ‘After the Event’ Legal Expenses Insurance which covers you from the risk of having to pay the disbursements and your opponent’s costs. However, like with the ‘no win, no fee’ agreement, the cover is conditional upon having continuing prospects of success which includes continuing prospects of beating a Part 36 offer. Where our advice is to reject the offer, your ‘After the Event’ Legal Expenses Insurance would cover you.

The Offer

As stated above the offer is made in the total sum of £3450.00. This is a global offer and would be in full and final settlement of your claim for both general damages and special damages.

This offer includes all of your financial losses in addition to your personal injury claim.





My Advice

If you were to accept the Defendant’s offer, the actual amount you would receive is £3450.00.

Based upon the current evidence I consider that the offer is a reasonable offer and should be accepted as I do not consider that there are reasonable prospects of beating the Part 36 offer. I would be unable to continue to act on a ‘no win, no fee’ should you reject the offer. In this instance your ATE insurer will also not continue to cover you where you have rejected a reasonable offer.

As such you have the following options:

• Accept the offer, or;

• Continue but on a private paying basis which means that you will be liable for my fees and disbursements and the Defendant’s fees and disbursements if you do not obtain a more advantageous offer. I would not recommend this course of action as in my opinion you are unlikely to beat the Defendant’s offer and you will also not have any After the Event Legal Expenses Insurance cover for the Defendant’s costs and disbursements.


What Happens if I accept the Offer

If you accept the offer then the matter is brought to a halt and you will effectively receive the compensation offered. Once the offer is accepted you will be unable to change your mind and you will be unable to seek any increase on the offer.

The final decision as to whether or not the Part 36 offer should be accepted is yours. There are always risks in litigation, and whilst we can give guidance as to whether or not the Part 36 payment should be accepted, we are obliged to take your detailed instructions as to the way in which you wish this matter to proceed. However, in giving consideration to this, you need to be aware of the possible ramifications of not accepting it.

Do consider the matter carefully and inform us by return of post or email whether or not you want us to accept the money which has been offered. I am more than happy to discuss the offer with you over the telephone if you require any further advice or guidance on the offer. Please call me on 01246 474487. However, if you are completely happy to follow my advice, please complete and return the authority slip at the bottom of this letter. "

[Deleted User]

It's pretty clear. If you accept you will get the full amount, if you don't your lawyer doesn't want to continue on a no-win-no-fee basis because he thinks you will probably not get anything better.

Jelly_legs

I'm in the process of making a claim against a driver. He was drunk whilst driving and killed my husband, whilst he was walking on a pavement.

These letters always sound more alarming than necessary. Was the driver charged with "driving without due care and attention"?

How has the insurance company arrived at this figure? My main concern is that you say you were injured. Have you had an MRI or something to check that there is no damage to your spine that could create problems in years to come?

I wouldn't accept the offer. If you are confident that you didn't suffer an injury that in time will not present itself again, I would make them an offer of atleast twice of their Part 36 offer and be prepared to meet in the middle.

The woman was driving in a careless and dangerous manner. The claim should represent this. In my opinion, the settlement figure should be of an amount that will make her uninsurable for a couple of years. Maybe then, we will get these idiots off the road.

The Motor Insurance Bureau has some good advice on their website.

JL

Jelly_legs

Okay, I've just read the letter properly. Your solicitor has said that the amount is a fair offer, if you decide to not accept and push for more, you'll have to pay the legal fees.

As the previous poster has said, £3450 is what you will receive. I still don't think its enough but you are in a difficult position now.

Maybe consult another PI solicitor for their opinion???

Good Luck with it all.

JL

InsideInsurance

Jelly_legs wrote: »

Was the driver charged with "driving without due care and attention"?

This would be irrelevant to the amount of settlement. English law works on the principle of indemnity and there are no punitive damages awarded.

The value of the claim would be the same if the TP was charged or not, found guilty or not or even if they had been found guilty of a much more serious crime.

Charging is also irrelevant, its convictions that are a potential factor when deciding liability. Anyone can be charged with an offence but you are legally innocent of it until found guilty.

Jelly_legs wrote: »

I wouldn't accept the offer. If you are confident that you didn't suffer an injury that in time will not present itself again, I would make them an offer of atleast twice of their Part 36 offer and be prepared to meet in the middle.

Do you actually know what a Part 36 offer is and the consequences of rejecting it?

On the grounds that one has been made there has evidently already been a fair amount of discussion over valuations hence the insurer trying to lock it down.

They could get the opinion of another solicitor but for a professional opinion you are talking a few hours work at ~£300 an hour which the OP would have to self fund. Seems a lot to be spending to me for a second opinion.

Jelly_legs wrote: »

The woman was driving in a careless and dangerous manner. The claim should represent this. In my opinion, the settlement figure should be of an amount that will make her uninsurable for a couple of years. Maybe then, we will get these idiots off the road.

As above, it doesnt, the criminal courts will deal with any issues about her crime. The civil courts simply ensure the claimants arent financially out of pocket because of it.

For most insurers the cost of a claim doesnt impact the premium. I've had cases where we have settled claims for over £1m and the insureds premiums havent gone up less than 5% because it was their only fault claim and they still had max NCD.



Whilst I am sure everyone has sympathy in your own case but you are clearly not an expert on how claims are handled and giving incorrect advice to others isnt going to help anyone

Jelly_legs

InsideInsurance......did you read my second post? I did admit to not reading the letter properly!

Jelly_legs

InsideInsurance......did you read my second post? I did admit to not reading the letter properly!


But, as you are clearly very efficient in correcting my knowledge, perhaps you could use that efficiency in helping the OP?:rotfl:

InsideInsurance

Jelly_legs wrote: »

But, as you are clearly very efficient in correcting my knowledge, perhaps you could use that efficiency in helping the OP?

The OP has already had reasonable advise from Mojo that it is ultimately a risky strategy to go on and reject the offer esp as their solicitor has advised them to accept it and isnt willing to proceed on CPA basis if the OP rejects it.

Clearly no one here can comment on if the settlement is reasonable or not as we dont have the full details of the injury, heads of claim or anything else. Plus I'd have significant concerns about the professionalism of anyone who was going to go against a solicitor who has the full details with only sketchy forum details.

The OP will know what their target was for their claim and so how far off the global offer is. They could follow your advice for a second opinion but they'd need to fund that themselves which would be expensive and assuming the global offer isnt massively off could well outweigh the difference wanted anyway.

Crazy_Jamie

Jelly_legs wrote: »

InsideInsurance......did you read my second post? I did admit to not reading the letter properly!

Yet in your second post you also expressed the view that the Part 36 offer was not sufficient, despite having no knowledge of the nature or severity of the OP's injury, nor indeed any legal knowledge or experience that would actually allow you to accurately value her claim even if you did have that information.


Your feelings that damages should reflect the other driver's culpability and cause them difficulties in future is understandable because of your own personal experience. That is, however, not the basis on which damages are awarded for negligence in this country. Your 'advice' to the OP is potentially dangerous in that it could result in the OP being personally liable for legal costs.


The reality is this. The OP's solicitor has advised that a Part 36 offer put forward by the Defendant is reasonable and should be accepted. Unless there is some particular reason that the OP has to think that her injury is worth more than the amount that has been offered, she should take her solicitor's advice and accept the offer. If the OP is unsure about the situation and has further questions, in the first instance those questions should be directed to her own solicitor.


To answer the other question, if the OP signed the Conditional Fee Agreement prior to 1st April 2013 the previous rules apply as to recovery of success fees. In other words, they are recovered from the third party insurer and are not taken out of the OP's general damages. That appear to be the case here, but again if the OP is not sure about that questions should be directed to the solicitor.

InsideInsurance

Crazy_Jamie wrote: »

The OP's solicitor has advised that a Part 36 offer put forward by the Defendant is reasonable and should be expected.

I thought people never expected reasonable offers from insurers