When people are involved in an accident or other incident and they are injured, many of them are reluctant to make a claim and take the issue to court. For those who are unsure of how many injury claims go to court and what the process involved is, this article from our personal injury team at Win Wales will outline everything you need to know.
How likely is any personal injury claim to be taken to a court of law?
The vast majority of injury claims never go to court. Only about 5% make it that far. And when they do, the hearing only takes place in front of a judge. No jury is involved.
The reason 95% of cases never go to court is that it is simply not necessary. Only the most complex injury cases or those in which liability cannot be resolved need to be taken to court. Instead, panels of professional solicitors acting on behalf of a firm settle the cases and make arrangements without ever involving a court.
Why are most injury compensation claims settled outside of a court?
Most people assume that most if not all injury claims will be argued out in court. In some ways it makes sense, one party wishes to be compensated for an injury and the other does not wish to payout. This natural conflict seems like it should require a judge or other third-party mediator for a resolution to occur.
While it is true that making a personal injury claim is an inherently litigious process, there are reasons most claims never see a courtroom:
Solicitors will not take on every single claim that comes along. They vet cases by examining the details involved to determine whether or not they believe it is worth pursuing. The criteria examined include:
- The injury occurred within the last three years (this time is extended if any children were involved in the incident).
- Another party was to blame for the incident.
- The other party that caused the injury had a duty of care that makes them financially responsible for compensation.
Solicitors must be able to prove each one of these aspects as well as various others before they can take on a case. Unfortunately, sometimes solicitors will not take on cases. Even when the client technically qualifies according to the above criteria.
Nobody wants to go to court
Nobody involved in the claims process wants to go to court. It is an intimidating not to mention costly process and one side will be responsible for the costs once the dust settles. Everyone knows that they could potentially lose and so they want to avoid that at all costs.
Costs and uncertainty
In the majority of cases, once a solicitor has agreed to act on behalf of a client the claims are then negotiated by them and by the defending party’s insurance company. Once the process begins, the injured party takes a very passive role.
So the process breaks down into a specialised solicitor making a claim on their client’s behalf versus the insurance company’s internal team which may include solicitors. Both of these parties view injury claims as a type of negotiation. They would both prefer to find a common understanding which lets them resolve the issue to their respective clients’ satisfaction while avoiding the expense and uncertainty of a court hearing.
No win, no fee
Most claims are only taken on a no win no fee basis. This means that the injured party will not incur any fees should their solicitors fail to win the case on their behalf. In the event of a loss, the legal fees are covered by the ATE insurance policy which is an integral component of any no win no fee agreement.
The defending insurance companies are aware of this fact. This means that they have more to lose since their legal fees are not covered in the event of a loss. Thus, if the insurance company loses they have to pay their legal fees as well as any financial compensation awarded to the injured party. This makes them hesitant to take their chances by denying that they are liable when they believe there is a strong chance that a ruling judge would disagree.
Why do solicitors refuse some qualifying claims?
Previously, it was mentioned that a solicitor might refuse to take on a case where the client qualifies for compensation. In reality, solicitors vet cases because they understand the difference between qualifying for compensation and having a strong chance of winning a claim.
First of all, solicitors will only take on cases where the general and special damages exceed £1,000. Any less and the solicitor will be unable to reclaim their costs from the defending party. This will also change in April 2020 as the limit of the small claims court is moving from £1,000 to £5,000.
Additionally, solicitors are unlikely to take a case that is approaching the 3-year limitation date. This is because all formal court documents must be filed before the time limit expires. While most settlements do not go to court, the defendant could drag their feet if they know the time limit is approaching knowing that their case would no longer be eligible.
Sometimes, the solicitor may lack the relevant experience to tackle a particular party. For example, they may be capable of and happy to take on an injury claim where the incident took place within a private business. On the other hand, they may reject a similar case if it took place in an area owned by the local council or similar authority. The firm may have a poor track record with particular case types or it may be deemed too expensive to be worth the risk.
Which circumstances cause a claim to be taken to court?
Some injury cases are fundamentally more complex than others. These often include:
- Serious claims of injury at work as well as industrial disease.
- Serious claims of injury from a road accident or a motorcycle claim.
- An injury that arises due to medical negligence.
- Any injury involving the head, back or spinal column.
- Any injuries that involve children.
- Any accident in which the injuries proved to be fatal.
- Any case in which the defendant or their insurer is slow to respond or entirely silent.
Unresponsive defendant or insurer
Sometimes the defendant or their insurer is slow to provide responses to the solicitor’s questions and attempted negotiations. In some cases, they can refuse to respond at all. If this happens, the injured party’s solicitor can apply to go to court. By taking the matter to court in this instance, the defendant becomes legally required to make an official response and to appoint a solicitor if they have not already done so.
Denial of liability
Sometimes, the defendant will try and avoid responsibility for the incident by denying liability. If this happens, then the solicitor will begin to make court arrangements while still attempting to negotiate a settlement. In the event that liability is never established, the case can end in a court hearing. Both the solicitor and the defendant’s representatives will usually try and avoid this scenario as both would prefer to avoid a court hearing when possible.
Sometimes, the accident means that the injured party has to change the way they live for some time. This could involve urgent treatment or expensive alterations to their lifestyle. If this is the case and the injured party is unable to pay for everything they need, their solicitor is able to apply to the court for an interim payment to assist with these costs before the final settlement.
What happens if the claim is taken to court?
Sometimes despite their best efforts, solicitors are unable to secure a satisfactory compensation settlement on behalf of their client. If this is the case, the next stage is commencing court proceedings.
The first step of the process involves the injured party’s solicitor filing the claim at the court. Next, the court reviews the claim and responds with the appropriate details on how it wishes to proceed. This response includes what information the solicitor must supply, when it must be supplied and when the trial will be.
Ongoing pre-trial negotiation
Even though a claim has been made and the trial has been set, the negotiations between the solicitor and the defendant’s representative do not end. In reality, most of the parties involved, the court included, would prefer it if the matter could be resolved before the formal hearing takes place.
An agreement can be reached at any time before the hearing is due, right up to the last minute. When it comes to the more complex cases or ones with a higher expected settlement, the defending insurance company’s might be testing the solicitors. They want to know how confident the solicitor is in their case. If they can force the solicitor to back down and agree to a smaller settlement in order to avoid court, this is to their advantage.
Does the injured part attend the hearing in person?
Usually, the injured party is not required to personally attend the court hearing. Any claim valued between £1,000 and £25,000 can be handled by the solicitor or an appointed barrister. These are known as “fast-track” cases.
If the value of the claim exceeds £25,000 then the injured party may be required to attend the hearing. These higher-value cases are known as “multitrack”. The injured party’s attendance is required so that they can answer the court’s question on the circumstances and events that occurred in the time leading up to the injury.
Both the injured party’s representative and the defendant’s representative will ask them questions about their statement. The judge listens to the injured party’s statement and the questions of the representatives. They will make a ruling based on this and the other submitted evidence and set the level of compensation if the injured party is deemed to be the winner.
How much compensation is awarded?
The injured party’s level of compensation depends on a number of factors. Roughly speaking, it is calculated by adding together the general damages and special damages.
‘General damages’ is the title given to any compensation that is owed due to pain, suffering or the loss of amenity. It is calculated based on the type of illness or injury and its severity.
Injuries are broken down into categories. The number of injuries, the affected area, the type of injury and the time required to heal as well as any lasting effects. However, when it comes to multiple injuries it is not a simple case of adding the individual values together.
‘Special damages’ is the title given to any compensation that is owed due to any financial losses or other expenses that occur as a direct result of the injury. This means things like time lost at work, medical treatments, lifestyle changes, specialist equipment and other factors.
The circumstances under which the injury occurred affect the level of compensation. This usually comes down to where the injury took place, who the responsible parties were and who had the duty of care for the injured party.
Does anything else affect the level of compensation?
Most solicitors take injury claims on a no-win-no-fee basis. When they do, an extra 10% is added to any compensation calculation to cover the impact of any legal fees after a successful win.
In the event that multiple injuries occurred, the compensation is increased accordingly. This is not as simple as adding the values for each injury together but the increase is significant. The best way to find out about this type of increase is to discuss the details of a particular case with a solicitor.
Are there any compensation deductions?
If the injured party is partially to blame for the injury, the compensation will be reduced as a result. The reduction depends on how the solicitor negotiates the percentage of the blame with the defendant’s representative. For example, if both parties agree that the injured person is 40% responsible for their injuries they would receive 60% of their compensation.
In the event of a win, the solicitor’s fee will be deducted if the case was taken on a no win no fee basis. However, since the compensation is also increased in this instance to compensate, the net result is that the injured party is awarded everything they are owed.
On top of the no win no fee payment, there is an ATE insurance payment. The insurance covers the legal costs of the solicitor should they lose the case. However, the cost of the ATE insurance policy is only deducted in the event of a win for the claimant.
Sometimes, a no-win-no-fee agreement only covers the solicitor’s fees. If there are extra fees in the form of medical consultations, barrister’s fees or other related costs. Some injury claim firms also have termination fees or early cancellation fees that come into effect if the injured party changes their mind about pursuing the case.
Any compensation received as a result of an injury claim is free from tax. However, any interest that is received on the awarded compensation is taxable. This payment will come in the form of a reduction in the interest payment.
Would a court hearing have a jury?
In short, no. All personal injury claim hearings are carried out in a civil courtroom. This means that there is no jury as well as no public gallery.
It cannot be denied that going to court is always a stressful experience. However, most people whose cases end up going that far say that the process is far less stressful and intimidating than they initially expected. It is still a process that all parties will endeavour to avoid but it is not that bad should it come to that.
The vast majority of injury claims never go to court. No one wants to go to court. It is expensive, time-consuming and stressful. Solicitors only take on injury cases they are confident in winning. This means that they always start negotiations with the defending party from a position of strength.
Defendants and their representatives understand their chances of losses just as well as the injured party’s solicitors. Usually, their only goal is to settle matters out of court with the lowest fee possible. They will only let the case go to court if they fundamentally disagree with the solicitor on some aspect such as their liability, the case is too complex for a simple out-of-court settlement or by refusing to answer the injured party’s solicitors. These are all very unusual circumstances but should they occur. Going to court is not as stressful as it initially seems.
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