The not-so-simple answer to this question, is that a claim is ready to settle when the offer made by the paying party (usually an insurance company) reaches a figure that is in line with previously decided and reported cases, which we call “precedents”, where the type of injury and the severity of that injury are very similar to a given client’s particular case. The most reliable precedents are those set by the highest courts in England & Wales – the High Court, the Court of Appeal and the Supreme Court.
Alternatively, if the other side’s offer is not high enough, then your solicitor can make an appropriate offer to the insurance company (or their solicitors), once you have given your approval, based on the same precedents. For more information on what you can claim in a personal injury case, download our Ebook here.
In valuing a claim on behalf of our clients at Truth Legal, in addition to precedent, we also use a number of other methods of assisting us in advising them in relation to any offers that are made by the paying party during the course of a personal injury compensation claim:
- The Judicial College Guidelines – these are a set of guidelines published and updated every few years. They set out a scale of valuations for each type of injury that a person suffering from that type injury might expect to recover in a compensation claim. Whilst helpful, the scales of valuation are quite wide. As the name suggests they are guidelines and do not in themselves provide precise figures. Each case has to be judged on its particular facts.
- Barrister’s opinion – in a compensation case where the injuries are of the more severe type, often with complicating individual factors, we might take advice from a barrister who is a specialist in the particular type of injury that we are instructed to deal with on a client’s behalf. At Truth Legal we generally only do this in more complex cases, where it can provide a useful second opinion to our own.
- Our own know-how – probably the most important factor that we use in helping us to value a client’s claim is our own expertise and experience of dealing with many types of personal injury claim on a daily basis and over a period of many years. All of our solicitors and Legal Executives are highly experienced in their specialist areas of personal injury, industrial disease or medical negligence compensation claims and keep abreast of changes in the law and the compensation awards appropriate to each type of claim. When valuing complex claims, we usually collaborate to ensure that the claim has been properly valued.
When am I likely to start receiving offers to settle my claim?
- Pre-Medical Offers
The first time that you might receive an offer to settle your claim could be before the claim process has even been properly started. Yes, you did read that correctly! Over the past few years insurance companies have started to make what are known as Pre- Medical offers (or ‘Pre-Med’ for short). These are usually offers made in relation to road traffic accident compensation claims, where liability for the accident is not in dispute. The offer usually comes by way of phone call or letter and the figures offered are often in the region of £1,000. Accepting a four-figure sum immediately might appear tempting but is fraught with danger. Invariably the amount on offer will be significantly less than could be recovered by going through the claims process and the real danger lies in the fact that what might at first instance appear to be a relatively minor injury, may in fact turn out to be far more severe.
The practice of making ‘Pre-Med’ offers has long been frowned on not only by personal injury compensation solicitors, but also it seems by the Government who have decided that they intend to ban the making of such offers and have included a clause to that effect in the Civil Litigation Bill which is expected to come into force later in 2018.
- When to accept an offer to settle your claim
Once the claims process has started, when you receive the first offer to settle your claim will depend on whether or not the paying party accepts liability for the accident. If they do not, then the matter will usually proceed, and you are unlikely to receive an offer to settle your claim until the question of liability has been resolved in your favour.
Either way, whether liability is in dispute or admitted, you will be asked to attend for a medico legal examination by a doctor who is trained in carrying out examinations of those injured in accidents and who will be a specialist in the field of medicine to which your injury relates. He or she will prepare a report of their findings, stating the injuries sustained and how long s/he thinks it will be before you make a full recovery. When that report has been produced your solicitor or Legal Executive will go through it in detail with you and check that you understand everything in the report and that you agree with it being used as evidence of the injuries you sustained in the accident.
If you suffered a more minor injury, where you have either recovered by the time you were seen by the doctor or where recovery is expected within a few months of the examination, then once the paying insurers have had sight of the report, it is likely that they will make an offer (assuming liability for the accident has been admitted). At that stage, your solicitor should advise you as to whether they think that the offer is reasonable or not. Not every first offer from an insurer is unreasonable (except when it is a ‘pre-med’ offer which we believe should most usually be turned down). However, in most cases, it is likely that the insurers first offer will not reflect the full value of a personal injury claim. In more minor cases, by negotiation it is usually possible to persuade the insurers to increase the offer to a figure that would represent a reasonable offer to. Your solicitor should be using what s/he believes a court would award you as a yardstick. It might take a number of offers from the insurer before getting to that point, but usually the case will settle without going to court, in a case where liability has been admitted. It might be that the insurers do not offer enough compensation. In that case, your lawyers should take the matters towards a court hearing so that a court can determine how your claim is worth.
- When not to accept an offer
Where your injuries are more severe or are likely to take longer than a few months from the date of the examination to recover from, then settling the case on the basis of the first medical report obtained, is a dangerous thing to do. It will probably not stop the insurers in an admitted liability case from making an offer. However, even if the insurer’s offer is not on the face of it wholly unreasonable, it is still unwise to settle your personal injury claim, particularly where:
- You have not fully recovered yet from the injury;
- The anticipated recovery time for your injury is more than six months in the future from the date of examination by the doctor;
- The doctor in his/her report suggests re-examination at a time in the future, because you are still having symptoms and s/he is unable at this stage to say how long it will be before you are fully recovered;
- Where the doctor recommends you to have some form of treatment and that treatment has yet to be completed;
- You have suffered multiple injuries each requiring examination by a different specialist doctor, with different anticipated timescales for recovery and you are still suffering from symptoms from one or more of the injuries that you sustained.
Even in moderately severe injury cases, it maybe that all your medical evidence will not be complete for a number of years as the medical experts need time to elapse, or treatment to be undertaken, before they are able to re-examine you to try and provide a final prognosis (opinion) that allows them with some accuracy to say when you are likely to be fully recovered or in more serious cases, to conclude that you may never fully recover from your injuries. Settling your claim whilst this process is ongoing would not be wise, to say the least. In such cases your solicitor should be seeking to obtain an interim payment (an early partial payment of compensation) or payments for you.
- An Interim Payment may help to alleviate financial pain
More severe personal injury compensation claims, of necessity, involve amassing comprehensive expert evidence in the form of medical and other expert’s reports. The most severe cases might include complex claims for future loss, care costs, rehabilitation or even for the cost of making a client’s home suited to his or her needs, which might have altered as a result of the injuries sustained.
Such cases can take many years to settle and the question of accepting offers to settle during the lifetime of the case may not be appropriate for many years. That is where obtaining an interim or even several interim payments comes into play. These are payments made on account of the final settlement and an experienced solicitor will be able make application for these at the appropriate times throughout the lifetime of a case or be able to agree interim payments with the paying party’s insurers accordingly. This can help to alleviate financial difficulties, without a person having to settle a case prematurely and thereby preventing the considerable risk of under settling their claim.
- Part 36 Offers
Either party may make what is known as a Part 36 offer during the lifetime of a case. This is an offer which is intended to have consequences as to costs, should the opposing side decide not to accept the Part 36 offer. The effect of a Part 36 offer, is that if not accepted and the matter either settles for an amount less than the Part 36 offer or, at a future court hearing the claimant is awarded less than the Part 36 offer, then he or she will have to pay the paying party’s costs since the date the Part 36 offer was made. This is where your solicitor has to bring into play all of his or her experience and skill in advising you of the reasonableness of the offer being made and is often where the solicitor will bring in a barrister to provide an advice too, depending on the issues in the claim.
Our Essential Tips For Settling A Personal Injury Claim
- We do not advise accepting a pre-medical offer from an insurance company. If you are injured in an accident, seek the advice of a personal injury solicitor or legal executive. The reason that the insurers make pre-medical offers is to save themselves money. It is a rare case indeed where the pre-medical offer actually has any connection with the true value of someone’s claim as it is a figure plucked out of thin air.
- Do not accept any offers to settle your claim until you and your legal advisers are satisfied that you have fully recovered in line with any medical evidence obtained or that you are very likely to recover fully fairly imminently. If in doubt, wait until the end of the anticipated recovery period to ensure that you have fully recovered, before agreeing to accept any offer of settlement.
- If your claim is likely to take some years at least before it is capable of settlement, your solicitor should be looking to obtain interim payments at appropriate stages throughout the life of the claim. That will hopefully provide you with the financial assistance that you require and not force you to consider settling your claim too soon.
- Any Part 36 offer that the other party makes, must be seriously considered in conjunction with your solicitor or legal executive. This though, does not mean that any amount of offer need be accepted just because it is termed a Part 36 offer.
- Do not settle your claim too soon. If you do not wait to see whether you fully recover before settling your claim, you may end up under settling and you would not then be able to re-open your claim if it transpires that your injuries were worse than anyone anticipated.
Did you know…
If you feel that your solicitor is not explaining your options, did you know that you can switch solicitors? We specialise in taking over personal injury claims which are being, or are about to be, botched by another law firm. Contact us today to find out about more about switching solicitors.
From one of the UK’s most read legal blogs.