Usually when a person decides to make a personal injury compensation claim, it’s been a difficult decision for them to make. Sure, we’ve all heard the stories of lorry drivers who, as soon as another vehicle taps into the back of their stationary lorry, jump out of the vehicle holding their neck with one hand and punching the air with the other. However, despite what some insurance spokesmen might choose to tell the Press, those people are in the minority.
For most people, perhaps especially for those who have suffered a serious personal injury, it’s a big step to take. After all, you are putting your trust and faith in someone that you probably don’t know. You’ve done all your online research or taken soundings from friends who’ve used a personal injury compensation solicitor before and then decided: he or she is the one that you are going to entrust to pursue a claim for a sum of money for you (perhaps a life-changing sum of money) from an insurance company. There is a significant amount of trust on the client’s part and a huge responsibility on the personal injury solicitor or legal executive.
Most of the time, thankfully, this solicitor’s profession that we are part of, is going to serve you well. Sadly, that isn’t always the case and for those for whom it doesn’t go smoothly (or for whom it is downright disastrous) it can be a chastening, frustrating and upsetting experience. If that is the case for you, then you are going to either ‘give it up as a bad job’, or if your solicitor has botched something key, you are going to need to look to sue your personal injury solicitor.
Here are our 4 main reasons why you would need to sue your personal injury solicitor.
- The solicitor fails to start legal proceedings within the limitation period.
The are time limits for bringing a personal injury claim. Pretty strict ones that are set out in an Act of Parliament called the Limitation Act 1980.
In most, but not all, injury claims you usually have three years to bring a claim (i.e. issue court proceedings) and that three-year clock starts ticking from the:
- Accrual of the cause of action, or in plain English, from the date of the accident or incident that caused your injuries; or
- Date of knowledge (if later) of the person injured – not quite so straightforward to work out. This is usually where an incident occurs – let’s say exposure to asbestos, causing damage (unbeknown to you at the time) to your lungs. Many years may then elapse and although you may have started to get breathing problems, as it was perhaps 10 years or more since you stopped working with asbestos, you don’t connect the fact that you worked with asbestos with the breathing difficulties you now struggle with. Within three years of being exposed to asbestos, you probably would have been totally unaware that any damage had been caused to your health. In such a case, the limitation period will not start to run until either you have been diagnosed with an asbestos related illness, or until you first realise that the severe breathing problems you are now experiencing are probably a serious disease caused by asbestos exposure from your employment all those years ago.
The limitation period in personal injury cases is three years from the date of either of the events mentioned above. However, bringing a claim, does not simply mean instructing a solicitor within three years of the date of the accident, to write a letter of claim or in some prescribed other way, get the claim ball rolling. No, ‘bringing a claim’ means starting legal proceedings against the party that you hold responsible for the injuries that you have suffered. Now by no means all personal injury claims go to court and by no means in all are court proceedings even started. If, for instance, your claim is for personal injury arising out of an accident at work, then if your solicitor is instructed within say six months of the incident, there will any case, be ample time for a competent solicitor to start the claim, gather all the evidence, obtain medical report(s) and settle the claim, having properly advised you throughout. No proceedings will be needed and everyone is happy that the claim has been done and dusted within three years of the accident.
In a similar scenario, but this time the other party denies liability – i.e. they deny that it was their negligence that caused the accident, and argue that you were the author of your own misfortune; alternatively, they admit liability but the solicitors cannot negotiate an agreed settlement; or it is not possible to settle the claim within three years, because your injuries are such that further medical reports will be needed beyond the three-year period, then a competent solicitor would gather all the evidence that he or she needs to start court proceedings within the three-year period, thus ensuring that the claim cannot be struck out. Provided that proceedings have been issued within the three-year period, then there is no problem with the dreaded limitation rules.
However, if your solicitor does not issue proceedings within three years and the matter has not already been settled, then you (or your solicitor) are in big trouble, because the other party is most likely to take the point that you are outside the limitation period, that you haven’t issued proceedings and therefore that they are not obliged to pay you a penny. In some instances, your solicitor could apply to the court for permission to issue proceedings outside the three-year period, but there are going to have to be very exceptional circumstances justifying why he or she should be allowed to do so.
In such cases when limitation is missed most your claim is most likely going to die, there and then. That is when you have every reason on earth to instruct another solicitor to sue your personal injury solicitor for negligence. You will be claiming from your original solicitor (or in reality, from his insurers) the amount of compensation that your original injury claim might have been expected to achieve, but for the solicitor’s negligence in missing the limitation cut-off date.
This all pre-supposes that you were not to blame for the delays by say jetting off to Australia for three years without telling your solicitor!
(Note: the three-year limitation rule doesn’t apply to children, nor to people who are incapacitated, nor in relation to Package Holiday claims, injuries on certain boats and planes and in other specific situations where limitation may be less than three years. If in doubt as to your limitation period, get specialist and urgent legal advice on this points).
- The solicitor has under-settled your personal injury claim
This is one of the most common reasons that personal injury solicitors get sued. When you go to a personal injury solicitor and ask them to pursue your case for personal injury compensation, you have a right to expect a certain level of service. The level of expectation is that in a personal injury claim, having seen all the medical and other evidence, is that the solicitor will be able to advise you what your injury claim is worth and strive to ensure that a commensurate figure is recovered either by negotiating with the other party’s solicitors or their insurance company or by taking the matter to a court hearing, if negotiations break down.
So why is the level of service received sometimes of such a low standard that a personal injury claim gets under-settled? Here are some reasons why it can happen.
- The claim is dealt with by someone at the law firm who is not experienced or qualified enough to deal with your claim competently, often a paralegal or a claims handler. We are aware that some firms employ very junior fee earners with little training and who are poorly paid, expecting them to carry a caseload of claims at an early stage often of over 500, without any or any adequate supervision and before they are experienced enough to do so. That to us seems like a recipe for disaster somewhere along the line and under-settlement of a claim is always a likely consequence. Road Traffic Accident claims and whiplash claims in particular are the areas where this seems to happen most often.
- The solicitor pressurises the client into settling too early. We are amazed at how many personal injury solicitors’ firms advise acceptance of the first offer made by the other party in personal injury cases. It’s not that all first offers are unreasonable, but almost invariably they are a starting point and a competent personal injury compensation lawyer is almost always going to be able to get the offer increased, not least because a good injury lawyer will have a really good idea what sort of figure would constitute a reasonable settlement figure and 90% plus of first offers will not be anywhere near to that valuation.
So why do so many firms advise acceptance of offers of settlement figures that are too low? Sometimes it is a lack of faith in their ability to negotiate the other party up to a higher figure. In other cases, it is probably because the fee earner handling the case, doesn’t know what the claim might actually be worth (which is shocking in itself). The most common reason why the personal injury fee earner seems intent on getting your claim settled quickly, is that he or she wants to get the file settled. That then means that the solicitor can recover their legal costs from the other side and the success fee from you (it’s likely to be No Win, No Fee, remember). Another figure to go towards their monthly target and your case getting settled near the end of a month, might just mean that they hit their target that month.
- The solicitor fails to read and understand the medical reports in relation to your case. If you are making a personal injury claim, one of the most crucial parts of the evidence needed will be a medical or several medical reports, depending on the nature of your injuries and the severity. It is therefore absolutely vital that the solicitor that acts for you, thoroughly reads and understands all the medical evidence obtained on your behalf. If your lawyer fails to do one or both of these things, then your claim stands a very good chance of being under-settled, because his or her valuation of your claim is likely to be flawed.
- Sometimes medical reports will be guarded in their conclusions. They might for instance say that, “Mrs X will continue to have problems with her neck injury for a further 6 months from the date of this report, but after that time, I expect her to have made a full recovery from her injuries.”
Mrs X may be keen to accept a valuation based on the estimate that she will be recovered in 6 months’ time and the other party has now made an offer in line with what her solicitor, rightly, believes a court would award, based on a similar injury lasting for the same length of time. However, this is another area where claims are under-settled. In such situations, the solicitor should advise Mrs X, in writing, as well as verbally, of the dangers of accepting a settlement based upon an anticipated recovery date at a time in the future (the alternative being to wait until that date has passed to see whether by then he has fully recovered or not.) It might be that she doesn’t want to wait and wants to settle the claim now. However, in accepting the offer, Mrs X should be made aware of the dangers of so doing at this stage and be asked to sign an acceptance/waiver form, to the effect that this has all been fully explained to her and that she nevertheless wants to accept the settlement on offer. If the solicitor does not take these steps, the solicitor is at risk of having a claim of negligence levelled at him/her should Mrs X find that her symptoms have not settled down within 6 months and that in fact her injuries are much more serious than either she or the solicitor, at the time of settlement, could ever have imagined.
- The solicitor has sued the wrong defendant.
This is not as ridiculous as it sounds. Sometimes companies have a different name to the one that they might most commonly be known by and a less than diligent solicitor might not include the right name in the court proceedings. Asbestos cases can also pose difficulties for unwary solicitors as often the companies that were responsible for causing someone to get asbestos disease no longer exist or have merged with another company. Again, a less than diligent lawyer might mistakenly sue the wrong company. Suing the wrong defendant becomes a real problem when by the time the error is realised, the limitation period has expired.
- The solicitor has missed a court deadline and the claim has been struck out.
So, your solicitor correctly issued court proceedings in order to further your personal injury compensation claim, within the limitation period. From issuing proceedings at court to the matter going to a court hearing to decide how much compensation you will receive (or to decide liability for the accident if that still hasn’t been decided) can take quite a while and during the life of civil court proceedings there are a number of steps that your solicitor and the insurance company’s solicitor will be required to take, to move the case along. Many of these steps will have time limits that the court specifies, within which they are to be completed, or where documents have to be supplied to your opponent’s solicitors or the court. If your solicitor fails to adhere to these time limits, then the claim can be struck out. If that happens, you will either receive nothing from the other party, or knowing that you are now in difficulties, they may allow you to accept an offer that was previously rejected by you as too low. If this has happened to you, then it’s time to sue your personal injury solicitor.
If you have suffered as a result of your personal injury lawyer having dropped any one of the four major clangers discussed above, then it’s time to get in touch with Truth Legal. We have considerable experience of suing other personal injury solicitors on behalf of clients whose lives have been dramatically affected by serious errors being made in respect of their personal injury claims.
You usually have six years within which to bring a claim for professional negligence, which is what we are describing here. However, the sooner you get the ball rolling the better. If we believe that you have a case for suing your former personal injury solicitor, then we should be able to pursue your claim for you under a No Win, No Fee agreement. Call now on 01423 788538.
From one of the UK’s most read legal blogs.