Articles Tagged ‘compensation - Brake the road safety charity’

Can I claim compensation?

Scroll down for information and advice on claiming compensation after a road crash.

This includes information about claiming compensation, hiring a solicitor, rogue offers of help, paying your solicitor, types of compensation, and fatal motor claim procedures.

Click here for information about finding specialist solicitors who can help you to claim damages following a road crash.

Can I claim compensation?

There is no automatic compensation for people bereaved by a road crash. However, compensation can often be awarded through a legal process using civil law, pursued by a solicitor who you instruct.

To award compensation, civil law requires someone (usually a driver in the case of road deaths) to be found at least partly responsible for a death. Sometimes this is possible even if no-one was charged with or convicted of a criminal offence.

Compensation is then usually paid by the responsible person’s motor insurer. If they were uninsured, or are untraceable, then the money is usually paid by an organisation called the Motor Insurers’ Bureau. (Find out more at www.mib.org.uk.)

Compensation can be awarded for different things. The amount of compensation awarded for these things is usually decided through negotiation, but sometimes by a court.

Even if you do not have funds to pay a solicitor, it is often still possible to pursue a claim for compensation if you have a good claim.

Instructing a solicitor to pursue compensation

To pursue a claim for compensation, you need to instruct a solicitor.

You are advised to use a solicitor who specialises in fatal injury cases.

A solicitor you are considering using should agree to meet with you for free initially. You may wish to meet with more than one solicitor to ensure you are choosing the best one for you.

The following organisations provide lists of solicitors that specialise in fatal injury cases:

  • The Association of Personal Injury Lawyers (APIL)T: 0115 943 5400
    www.apil.org.uk
  • The Motor Accident Solicitors Society (MASS)T: 0117 925 9604
    www.mass.org.uk

Here are some questions it is advisable to ask, to help you decide which solicitor to choose:

  • Do you think I have a strong claim and are you willing to take on my case?
  • What experience do you have in handling similar cases? Can you give me examples and their outcomes?
  • How many similar cases have you handled in the past five years?
  • What expertise do you have relevant to my case?
  • What fees do you charge?
  • What arrangements can you put in place for payment of these fees so that compensation I receive is not unduly reduced to cover legal fees, and so that I do not have to pay much, or any, legal costs if I lose?
  • Will you handle my case yourself entirely, or involve colleagues?
  • If you plan to involve colleagues, how much will they be involved, and if a lot, can I meet them now?
  • How will we communicate during the process? Will you be available to explain things to me and answer my questions regularly through meetings, emails or over the phone?
  • Are you a member of APIL and/or MASS?

It is important you sign an agreement with your solicitor that you understand thoroughly and consider fair.

It is also helpful to keep notes of conversations with your solicitor and copies of correspondence, so you can keep track of your claim.

Do not delay

Do not delay consulting solicitors. If you have a good chance of getting compensation, the solicitor you choose will want to work on your case as soon as possible. It can take time to compile evidence to support your case, and the earlier you hire a solicitor, the sooner compensation can be awarded.

Your solicitor may also be able to request for Interim Payments to be made in advance of any final settlement. Most claims must be submitted within three years of the date of the death, although sometimes claims must be made within two years. If the crash happened abroad, time limits for claims may be shorter, and can be one year or less.

Complaining or changing solicitor

If, at any stage, you are unhappy with the service you are getting from your solicitor, you can ask to speak to the partner in the practice responsible for looking after clients; often called the complaints partner.

If you remain dissatisfied, it may be possible to change solicitor. If you have a complaint about a personal injury solicitor, you can complain to the legal ombudsman. Call 0300 555 0333 or go towww.legalombudsman.org.uk.

Rogue offers of help

Sometimes a ‘claims assessor’, ‘claims farmer’, or ‘claims management company (CMC)’, may offer to pursue your claim for you, often on a ‘no win, no fee’ basis. Often they are not personal injury solicitors, nor qualified or regulated to the same standards of solicitors.

You may also be approached by someone representing the motor insurance company of a driver you want to claim from, offering to settle your claim directly and quickly with you, without the need for you to instruct a solicitor.

Do not accept these offers of help. If you do, you will probably not be independently represented by a suitably qualified solicitor, and you may be awarded far less compensation than you are entitled to.

Paying your solicitor

There are various ways of funding a claim and it is crucial you talk to your solicitor about the options available. Make sure you understand exactly what you may have to pay for if you win or lose your claim.

Sometimes people pay their solicitor as they go along, either because they have the funds to do so, or because they have an insurance policy that covers legal costs and expenses. Your solicitor can help you check any insurance policies you have to find out if you are covered for legal fees.

It is usually possible to pay your solicitor at the end of the case. If you win your case, the person you are claiming compensation from will probably have to pay some of your legal fees.

Many people do not have available funds to pay a solicitor to pursue a claim for them. However, it should be possible to reach an agreement with your solicitor that means you won’t have to pay anything, even if you lose your claim.

Depending on the agreement you signed with your solicitor, you may also have to pay your solicitor additional fees from your compensation, such as a ‘success fee’ for winning your case.

There are complex laws governing how solicitors are paid in compensation cases. It is important that you understand, from the beginning, how your solicitor intends to cover the costs of your claim and any fees you may personally be liable for, at any time, if you win or lose your claim.

It is particularly important that you do not sign an agreement that would result in your solicitor unreasonably taking a large amount of your compensation if you win your case. You should also be protected from being liable for hefty legal costs if you lose your case.

Types of compensation

Some types of claims for compensation are listed below. Your solicitor may advise you to make one, several or none of these claims. All claims depend on some liability (or blame) being established.

  1. Dependency claims

In certain circumstances, people who were financially reliant (or who had an expectation of becoming financially reliant) on a person who has died can claim for the loss of that support. This is called a financial dependency claim. The amount that can be claimed is not fixed. It depends on the amount of support provided by the person who has died and how that would have continued in the future. A dependency claim often includes a claim for loss of income. This amount will be worked out according to how much the person who has died earned, how long they would have continued earning if they had not died and other factors. A dependency claim may include a claim for loss of services provided, such as childcare, DIY, or other domestic jobs which were undertaken by a person who has died.

If you are making a dependency claim for yourself, or on behalf of others such as a child, your solicitor will help you consider all losses and help work out how much to claim in total. Evidence including income and employment records may be required to prove dependency claims.

  1. Bereavement awards

Some people may be entitled to a fixed, statutory bereavement award, currently £12,980. This is only payable to the wife, husband or civil partner of someone who has died, or the parents of a child under the age of 18 who has died. Your solicitor can tell you if you are eligible for this award.

  1. The shock suffered by bereaved people

You may be able to claim money for the psychological injury you have suffered as a result of your bereavement. There are strict criteria about who can claim. If you do not meet these criteria you may not be able to claim, even though you have suffered significant trauma.

  1. The suffering of someone who has died

If someone died after surviving for a period of time, it may be possible to claim compensation for their pain and suffering. The amount that can be claimed is based on the amount of time that the person suffered and the extent of their awareness or suffering.

  1. Burial or cremation expenses

Reasonable costs of a funeral (burial or cremation) and associated expenses such as a gravestone can usually be claimed from a liable party. You should keep all receipts.

  1. Claim for injuries

If you, or anyone close to you, were injured in the crash, it is important to find out if you can make a claim for those injuries and losses resulting from injuries. Your solicitor will advise you.

Fatal motor claim procedures

Preparing and negotiating your claim

Your solicitor will prepare your claim by collecting evidence, such as proof of past earning levels of the person who died.

Once your solicitor has prepared your claim, they will contact the motor insurer of the person from whom you are trying to claim (the other side). If the other side admits liability your solicitor will start negotiating with them to determine how much compensation they should pay.

The other side may try to argue your claim is too high. For example, if you are pursuing a dependency claim, they may want to check medical and employment records and argue that the person who has died would not have earned as much money in the future as your solicitor is claiming. The negotiations can take a long time but most claims where someone has admitted liability are settled through negotiation rather than court action.

Knowing that solicitors and insurance companies are negotiating over the value of your loss can be distressing, particularly if your case takes time to be resolved. Ask your solicitor to keep you updated on a regular basis about how your case is progressing.

Offers made during negotiation

Both your solicitor, and the other side, can make offers of compensation during negotiations.

Either side has a right to accept or reject an offer. Your solicitor should explain any offer you receive, and help you decide your response.

In some cases, a partial payment called an Interim Payment is made by the other side prior to a final payment, to help cover costs such as funeral expenses. This can be helpful for people facing financial hardship as a result of their bereavement.

Either side may also propose a Final Settlement offer, or Part 36 offer, in full and final settlement of your claim. If the other side proposes a Part 36 offer, you and your solicitor have 21 days to accept or reject it (although an offer can be accepted later if it has not been withdrawn). You should consider all offers seriously.

Going to court

If your compensation cannot be agreed through negotiation, or if liability is not admitted, your solicitor may start legal action against the other side.

However, even after legal action has started, your solicitor is likely to continue to try to negotiate a settlement with the other side.

Sometimes, the other side will make an acceptable offer just before a case is heard in court.

If agreement cannot be reached, your claim will be heard in a County Court or the High Court by a judge.

Success in court is not guaranteed; you cannot pre-determine the decision of a judge. Court cases may also take a long time to be heard.

Settlement of cases brought on behalf of children under the age of 18 have to be approved by a court. In most cases, money awarded to children is kept and administered by the court in a special account until the child is 18 years old.


Click to go to the next section of this guide: Useful organisations or to go to the contents page.

Can I claim compensation?

Scroll down for information and advice on claiming compensation; types of fatal motor claim; fatal motor claim procedures; working with your solicitor; and paying your solicitor.


Claiming money for your loss

Many people bereaved by a road crash can claim money from the insurance company of a driver whose actions contributed to the crash. Sometimes very significant amounts can be claimed, although this isn’t always possible.

The only way to find out if you should make a claim, and how much that claim might be worth, is to consult a personal injury solicitor as soon as possible. You shouldn’t have to pay a solicitor to meet with them and discuss your case and they may be able to visit you at your home.

You can check these things before you arrange a meeting. In many cases, you will also not have to pay for the solicitor’s work if they take on your case. It is the job of your solicitor to professionally pursue a claim that has a good chance of success and work to ensure that you are awarded as much as possible.


Instructing a solicitor to pursue compensation

To pursue a claim for compensation, you need to instruct a solicitor.

You are advised to use a solicitor who specialises in fatal injury cases and who is qualified to act in the country which has jurisdiction. That normally means instructing a Scottish qualified solicitor if the crash happened in Scotland.

A solicitor you are considering using should agree to meet with you for free initially. You may wish to meet with more than one solicitor to ensure you are choosing the best one for you.

The following organisations provide lists of solicitors that specialise in fatal injury cases:

  • The Association of Personal Injury Lawyers (APIL)
    T: 0115 943 5400 www.apil.org.uk
  • The Motor Accident Solicitors Society (MASS)
    T: 0117 925 9604 www.mass.org.uk

Here are some questions it is advisable to ask, to help you decide which solicitor to choose:

  • Do you think I have a strong claim and are you willing to take on my case?
  • Are you qualified to practise within the jurisdiction of the country where the crash occurred?
  • What experience do you have in handling similar cases? Can you give me examples and their outcomes?
  • How many similar cases have you handled in the past five years?
  • What expertise do you have relevant to my case?
  • What fees do you charge?
  • What arrangements can you put in place for payment of these fees so that compensation I receive is not unduly reduced to cover legal fees, and so that I do not have to pay much, or any, legal costs if I lose? (See below for more information on paying your solicitor.)
  • Will you handle my case yourself entirely, or involve colleagues?
  • If you plan to involve colleagues, how much will they be involved, and if a lot, can I meet them now?
  • How will we communicate during the process? Will you be available to explain things to me and answer my questions regularly through meetings, emails or over the phone?
  • Are you a member of APIL and/or MASS?

It is important you sign an agreement with your solicitor that you understand thoroughly and consider fair.

It is also helpful to keep notes of conversations with your solicitor and copies of correspondence, so you can keep track of your claim.


Rogue offers of help

Someone called a claims assessor, a claims handling company or a claims management company (CMC) may offer to pursue your claim for you, often on a ‘no win, no fee’ basis. They are not personal injury solicitors, and are not qualified or regulated to the standards of solicitors.

You may also be approached by someone representing the motor insurance company of a driver you want to claim from, offering to settle your claim directly and quickly with you, without the need for you to hire a solicitor.

Do not accept these offers of help. If you do, you will not be independently represented by a suitably qualified solicitor, and you may be awarded far less compensation than you are due.


Can I definitely make a claim?

Claims can only be made by certain people, in certain cases, and for certain things. While many people can make a claim, not everyone is eligible, and not everyone is eligible for the same payments. If the crash was caused by a deliberate act, the award may be paid by another body called the Criminal Injuries Compensation Authority. In all cases, your solicitor can advise you.


Why don’t I get compensation automatically from the State?

If you are struggling financially, you may be able to claim state benefits (see Practical issues). However, there is no automatic compensation for death on the road. Your solicitor has to pursue a fatal motor claim against someone using civil law, with you as the claimant (also called the ‘pursuer’).


Can I make a claim if no-one was charged with a criminal offence?

Civil law is different to criminal law. In some cases it is possible to establish that someone is responsible for a death on the road under civil law even though that person was not charged with, or was found not guilty of, a criminal offence.

To succeed, a fatal motor claim requires someone to be found, ‘on the balance of probabilities’, to be at least partly responsible (liable) for a death and for the liable person to agree to pay you an amount of money (an award of damages). An award is made after a process of negotiation or a court ruling. Amounts awarded vary from case to case. In criminal law, by comparison, the guilt of an accused person has to be ‘beyond reasonable doubt’ to secure a conviction, which requires a higher level of proof.

Do not delay

Do not delay consulting solicitors. If you have a good chance of compensation, the solicitor you choose will want to work on your case as soon as possible. It can take time to compile evidence to support your case, and the earlier you hire a solicitor, the sooner compensation can be awarded. Most claims must be submitted within three years, although sometimes claims must be made within two years. If the crash happened abroad, time limits for claims may be shorter, and can be one year or less.


Who pays an award?

Awards are usually paid by a liable person’s motor insurance company, not by the person themselves. If a liable person was uninsured, or is untraceable, then the award is usually paid by a body called the Motor Insurers’ Bureau (MIB). You can find out more about the MIB from its website www.mib.org.uk. You will still need a solicitor.


Types of fatal motor claim

Many people who were financially reliant on a person who died can claim for the loss of that support. Your solicitor can give you more details about each of these types, and may advise you to make one, several or none of these claims. All claims depend on liability being established. Whether you can claim or not is dependent on your relationship to the person who died. Your solicitor can advise you.

1 Loss of support claims

In certain circumstances, people who were financially reliant on a person who has died can claim for the loss of that support. This is called a loss of support claim. The amount that can be claimed is not fixed. It depends on the amount of support provided by the person who has died.

A loss of support claim often includes a claim for loss of income. This amount will be worked out according to how much the person who has died earned, how long they would have continued earning if they had not died and other factors. A support claim can also be made for loss of income from a pension of someone who has died.

If you are making a ‘loss of support’ claim for yourself, or on behalf of others such as a child, your solicitor will help you consider all losses and help work out how much to claim in total. Evidence including employment records and household bills may be required to prove loss of support claims.

2 Service claims

A service claim may include a claim for loss of services provided by the person who has died, including childcare, DIY, or other domestic jobs. It can also include services provided for a loved one if they survived the crash for a period prior to death, such as nursing or care services at home.

3 ‘Loss of society’ claims

A payment can often be made for your bereavement. This is called a ‘loss of society’ claim. The claim aims to provide some level of compensation for the following: distress and anxiety over a loved one’s suffering prior to their death; grief and sorrow over a loved one’s death; and the loss of a loved one’s ‘society and guidance’ due to their death. The amount that can be claimed depends on the nature of your relationship with a person who died and other factors, including the age of a person who died. Many relatives of someone who has died can claim. Your solicitor can advise you.

4 The suffering of someone who has died

If someone died after suffering a period of pain, then it may be possible to claim money in compensation for that suffering. The amount that can be claimed is based on the amount of time that the person suffered and the extent of the pain.

5 Funeral expenses

The cost of the funeral, or most of the cost, can be claimed from a liable party.

6 Claims for children aged under 16

Money can be claimed on behalf of a child or children under the age of 16. An adult will normally pursue the claim on their behalf. This adult is usually a parent or guardian. The court may appoint someone independent to act on the child’s behalf.

7 Claims for injuries

If you, or anyone close to you, was injured in the crash, it is important to find out if you can make a claim for those injuries and losses resulting from injuries. Your solicitor will advise you.


Fatal motor claim procedures

Starting a claim

You and your solicitor will decide whether you should claim, what claim(s) to submit and how much to claim. Your solicitor will normally write to the motor insurer for the person you are making a claim against (known as the other side). Once the other side has acknowledged receipt of this letter, they have a period of time to investigate and say whether or not they accept they are liable and should pay you money.

Negotiating your claim

If the other side admits liability and agrees to pay you money, it may make an offer, or several offers, which are lower than the amount your solicitor thinks you are due and has asked for. For example, if you are pursuing a loss of support claim, the other side may use information in medical and employment records of the person who has died to argue your claim is too high.

Most claims in which liability is admitted are settled through negotiation, without the need to go to court. You can refuse or accept any offer made. Your solicitor will advise you whether an offer is reasonable.

Court proceedings

If you are not offered an acceptable award through negotiation, or if liability is not admitted, your solicitor may start legal action (civil proceedings) against the other side. Depending on the case, your solicitor will usually issue a summons in the Court of Session, but may issue a writ in Specialist Personal Injury Court or a local Sheriff Court. Most claims must be raised in court within three years, although sometimes claims must be made within two years. Proceedings may be raised sooner to ensure any award is made as soon as possible.

If your solicitor has issued a summons or a writ against the other side, it does not necessarily mean your case will proceed to a full court hearing where witnesses give evidence. Your solicitor will continue to try to negotiate a settlement with the other side. In some cases an interim payment (or part payment) is made by the other side prior to a final payment. The vast majority of court actions are settled without the need for any hearing of evidence.

Tenders (formal offers made during court action)

A formal offer called a tender may be made by the other side. If you reject a tender and then later negotiate or are awarded a settlement which is the same or less than the amount tendered, you will be liable for the legal fees of both sides from the date of the tender. If the final settlement is higher, the other side will probably have to pay most, if not all, of your legal fees.

Tenders should be very carefully considered. There are many reasons why it may be better to negotiate a settlement out of court. Success in court cannot be guaranteed and you cannot pre-determine the decision of a sheriff or jury. Also, your case may take a long time to be heard in court.

Sometimes, the other side will make an acceptable offer just before a case is due to be heard in court.


Going to court

If a negotiated settlement cannot be reached, your case will be decided in court. Your claim will usually be dealt with in the Court of Session or the Specialist Personal Injury Court. Both courts are in Edinburgh. Your solicitor may or may not try to have your case heard in front of a jury rather than a judge or sheriff sitting alone. Sometimes a case is dealt with in a local Sheriff Court. Your solicitor will advise you.

Knowing that solicitors and insurance companies are negotiating over the value of your loss can be distressing, particularly if your case takes a long time to be resolved. Ask your solicitor to keep you updated on a regular basis about how your case is progressing.


Talking to your solicitor

Your solicitor should be able to explain what is happening in straightforward terms and be available to talk to you regularly, over the phone or in meetings. They should be happy to answer any of your questions.

It is a good idea to keep notes of conversations with your solicitor and copies of correspondence so you can keep track of your claim.

Ensure you know who is handling your case. Sometimes several people in a solicitor’s office may work on your case.


Complaining about, or changing, your solicitor

If, at any stage, you are unhappy with the service you are getting from your solicitor, you can ask to speak to the partner in the practice responsible for looking after clients, often called the ‘client relations manager’.

If you remain dissatisfied, it may be possible to change solicitor. The organisations listed above will be able to give you advice about alternatives.

The Law Society of Scotland gives information about making a complaint against a solicitor on its website at www.lawscot.org.uk.

If you have a serious complaint about a personal injury solicitor in Scotland, you can make a formal complaint to The Scottish Legal Complaints Commission by completing a form. Contact them on 0131 201 2130 or go to www.scottishlegalcomplaints.org.uk.


Paying your solicitor

If you are awarded money, the other side will usually have to pay most, or all, of your legal fees.

The other side will usually pay for any other costs your solicitor has incurred, as long as these costs were reasonable. These costs, such as the cost of medical reports, are called ‘disbursements’ or ‘outlays’. In some cases, the other side may not have to pay these costs. Your solicitor can advise you.

If your claim is unsuccessful, you may be liable for your legal costs and those of the other side. Your solicitor should help you to take out a legal expenses insurance policy that covers you against this risk. However, there are a number of ways to pay for any legal costs you incur that do not require you to be able, personally, to afford to pay very much money.


Speculative fee agreements or damages-based agreements (no win, no fee)

Many solicitors offer a speculative fee agreement (SFA) or damages-based agreement (DBA), sometimes known as a ‘no win, no fee’ arrangement.

Under these arrangements, you don’t pay any money to your solicitor up front. If your claim is successful, your solicitor may or may not charge you a ‘success fee’, in addition to their costs being paid by the other side. Before starting your claim, you should agree with your solicitor, in writing, the size of the success fee they can charge if your claim succeeds. Under a SFA, a success fee can be up to the same amount again as your solicitor’s legal costs. Under a DBA, a success fee is assessed as an agreed percentage of the damages awarded.

One important advantage of a SFA or DBA is that you are protected against having to pay the other side’s costs if your claim fails.

Under a speculative fee or damages-based agreement it should not be necessary for your solicitor to charge you any money as the case proceeds, nor expect you to carry any risk if your case fails. If your solicitor proposes this, you may wish to consult a different solicitor.


Paying upfront

Some people choose to pay their solicitor as they go along. You may be able to do this if:

  • you can afford to pay a solicitor;
  • you are insured for legal expenses. It is worth checking the details of motor and house insurance policies and membership of bodies such as trade unions, although sometimes these policies don’t provide enough cover. Your solicitor can advise you.

Legal aid

If you have disposable income below a certain level, you may qualify for legal aid. Legal aid is help towards the costs of legal advice and representation provided by a solicitor and is paid for out of public funds.

Legal aid may be free or you may have to pay a contribution towards the costs of your case. Legal aid does not cover your opponent’s legal costs.

Should you lose your case, you may be ordered by the court to pay some or all of your opponent’s costs. You may be able to apply to the court to have this sum reduced. In such instances, you should seek the assistance of your solicitor. To find out more about legal aid or to obtain help in finding a solicitor who is registered to provide a legal aid service to you, contact the Scottish Legal Aid Board's helpline on 0131 226 7061 or go to www.slab.org.uk.


Click to go to the next section of this guide: Useful organisations or to go to the contents page.

Can I claim compensation?

Information and advice on claiming compensation; hiring a solicitor to pursue compensation; rogue offers of help; paying your solicitor; types of compensation; fatal motor claim procedures.

Can I claim compensation?

There is no automatic compensation for people bereaved by a road crash. However, compensation can often be awarded through a legal process using civil law, pursued by a solicitor you hire.

To award compensation, civil law requires someone (usually a driver in the case of road deaths) to be found at least partly responsible for a death. Sometimes this is possible even if no-one was charged with a criminal offence.

Compensation is then usually paid by the responsible person’s motor insurer. If they were uninsured, or are untraceable, then the money is usually paid by an organisation called the Motor Insurers’ Bureau. (Find out more at www.mib.org.uk.)

Compensation can be awarded for different things. The amount of compensation awarded for these things is usually decided through negotiation, but sometimes by a court.

Even if you do not have funds to pay a solicitor, it is often still possible to pursue a claim for compensation if you have a good claim.

Instructing a solicitor to pursue compensation

To pursue a claim for compensation, you need to instruct a solicitor.

You are advised to use a solicitor who specialises in fatal injury cases and who is qualified to act in the country which has jurisdiction. That normally means instructing a Northern Ireland qualified solicitor if the crash happened in Northern Ireland.

A solicitor you are considering using should agree to meet with you for free initially. You may wish to meet with more than one solicitor to ensure you are choosing the best one for you.

Here are some questions it is advisable to ask, to help you decide which solicitor to choose:

  • Do you think I have a strong claim and are you willing to take on my case?
  • Are you qualified to practise within the jurisdiction of the country where the crash occurred?
  • What experience do you have in handling similar cases? Can you give me examples and their outcomes?
  • How many similar cases have you handled in the past five years?
  • What expertise do you have relevant to my case?
  • What fees do you charge?
  • What arrangements can you put in place for payment of these fees so that compensation I receive is not unduly reduced to cover legal fees, and so that I do not have to pay much, or any, legal costs if I lose?
  • Will you handle my case yourself entirely, or involve colleagues?
  • If you plan to involve colleagues, how much will they be involved, and if a lot, can I meet them now?
  • How will we communicate during the process? Will you be available to explain things to me and answer my questions regularly through meetings, emails or over the phone?
  • Are you a member of APIL and/or MASS?

It is important you sign an agreement with your solicitor that you understand thoroughly and consider fair.

It is also helpful to keep notes of conversations with your solicitor and copies of correspondence, so you can keep track of your claim.

Do not delay

Do not delay consulting solicitors. If you have a good chance of compensation, the solicitor you choose will want to work on your case as soon as possible. It can take time to compile evidence to support your case, and the earlier you hire a solicitor, the sooner compensation can be awarded. Most claims for money must be submitted within three years of the date of the death, although sometimes claims must be made within two years. If the crash occurred abroad, time limits for claims may be shorter, and can be one year or less.

Complaining or changing solicitor

If, at any stage, you are unhappy with the service you are getting from your solicitor, you can ask to speak to the partner in the practice responsible for looking after clients; often called the complaints partner. If you remain dissatisfied, it may be possible to change solicitor. If you have a complaint about a personal injury solicitor, you can complain to the Law Society of Northern Ireland. Call 028 9023 1614 or go towww.lawsoc-ni.org.

Rogue offers of help

Sometimes a ‘claims assessor’, ‘claims farmer’, or ‘claims management company (CMC)’, may offer to pursue your claim for you, often on a no win, no fee basis. Often they are not personal injury solicitors, nor qualified or regulated to the same standards of solicitors.

You may also be approached by someone representing the motor insurance company of a driver you want to claim from, offering to settle your claim directly and quickly with you, without the need for you to instruct a solicitor.

Do not accept these offers of help. If you do, you will probably not be independently represented by a suitably qualified solicitor, and you may be awarded far less compensation than you are entitled to.

Paying your solicitor

There are various ways of funding a claim and it is crucial you talk to your solicitor about the options available. Make sure you understand exactly what you may have to pay.

Some people pay their solicitor as they go along, either because they have the funds to do so, or they have an insurance policy that covers legal costs and expenses. Your solicitor can help you check any insurance policies you have to find out if you are covered for legal fees.

Legal aid may be available to you. Your solicitor can tell you whether you are eligible for legal aid and help you complete the application forms.

It is also possible to pay your solicitor at the end of the case. If you win your case, the person you are claiming compensation from will probably have to pay some of your legal fees.

There are complex laws governing how solicitors are paid in compensation cases. It is important that you understand, from the beginning, how your solicitor intends to cover the costs of your claim and any fees you may personally be liable for, at any time, if you win or lose your claim.

It is particularly important that you do not sign an agreement that would result in your solicitor unreasonably taking an amount of your compensation if you win your case. You should also be protected from being liable for hefty legal costs if you lose your case.

Types of compensation

Some types of claims for compensation are listed below. Your solicitor may advise you to make one, several or none of these claims. All claims depend on liability being established.

  1. Dependency claims

In certain circumstances, people who were financially reliant (or who had an expectation of becoming financially reliant) on a person who has died can claim for the loss of that support. This is called a financial dependency claim. The amount that can be claimed is not fixed. It depends on the amount of support provided by the person who has died and how that would have continued in the future.

A dependency claim often includes a claim for loss of income. This amount will be worked out according to how much the person who has died earned, how long they would have continued earning if they had not died and other factors.

A dependency claim may include a claim for loss of services provided, such as childcare, DIY, or other domestic jobs which were undertaken by a person who has died.

If you are making a dependency claim for yourself, or on behalf of others such as a child, your solicitor will help you consider all losses and help work out how much to claim in total. Evidence including income and employment records and household bills may be required to prove dependency claims.

  1. Bereavement awards

Some people may be entitled to a fixed, statutory bereavement award, currently £15,100. This is only payable to the wife, husband or civil partner of someone who has died, or the parents of a child who has died. Your solicitor can tell you if you are eligible for this award.

  1. The shock suffered by bereaved people

You may be able to claim money for the psychological injury you have suffered as a result of your bereavement. There are strict criteria about who can claim. If you do not meet these criteria you may not be able to claim, even though you have suffered significant trauma.

  1. The suffering of someone who has died

If someone died after surviving for a period of time then it may be possible to claim compensation for their pain and suffering. The amount that can be claimed is based on the amount of time that the person suffered and the extent of their awareness or suffering.

  1. Burial or cremation expenses

Reasonable costs of a funeral (burial or cremation) and associated expenses such as a gravestone can usually be claimed from a liable party. You should keep all receipts.

  1. Claim for injuries

If you, or anyone close to you, were injured in the crash, it is important to find out if you can make a claim for those injuries and losses resulting from injuries. Your solicitor will advise you.

Fatal motor claim procedures

Preparing and negotiating your claim

Your solicitor will prepare your claim by collecting evidence, such as proof of past earning levels of the person who died.

Once your solicitor has prepared your claim, they will contact the motor insurer of the person from whom you are trying to claim (the other side).

If the other side admits liability and agrees to pay you money, it may make an offer, or several offers, which are lower than the amount your solicitor thinks you are due and has asked for. For example, if you are pursuing a loss of support claim, the other side may use information in medical and employment records of the person who has died to argue your claim is too high.

Most claims in which liability is admitted are settled through negotiation, without the need to go to court. You can refuse or accept any offer made. Your solicitor will advise you whether an offer is reasonable.

Knowing that lawyers and insurance companies are negotiating over the value of your loss can be distressing, particularly if your case takes time to be resolved. Ask your lawyer to keep you updated on a regular basis about how your case is progressing.

Offers made during negotiation

Both your solicitor, and the other side, can make offers of compensation during negotiations.

Either side has a right to accept or reject an offer. Your solicitor should explain any offer you receive, and help you decide your response.

In some cases a partial payment called an Interim Payment is made by the other side prior to a final payment, to help cover costs such as funeral expenses. This can be helpful for people facing financial hardship as a result of their bereavement.

The defendant (other side) may pay a sum into court of an amount which it thinks is sufficient to settle the claim in full. This is known as ‘making a lodgement’ or ‘making a payment into court’. There are rules about how costs and expenses are affected by lodgements and payments into court and your solicitor can explain these to you.

Going to court

If your compensation cannot be agreed through negotiation, or if liability is not admitted, your solicitor may start legal action against the other side.

However, even after legal action has started, your solicitor is likely to continue to try to negotiate a settlement with the other side.

Sometimes, the other side will make an acceptable offer just before a case is heard in court.

If agreement cannot be reached, your claim will be heard in a County Court or the High Court by a judge.

Success in court is not guaranteed; you cannot pre-determine the decision of a judge. Court cases may also take a long time to be heard.

Cases brought on behalf of children are always decided in court. In most cases, money awarded to children is kept and administered by the court in a special account until the child is 18 years old.


Go to the next section of this guide: Useful Organisations or return to the contents page.

 

Serious injury guide: compensation types and the process of claiming

Types of claims for compensation are listed below. Your solicitor may advise you to make one, several or none of these claims. All claims depend on liability being established.

Below this list of possible claims is a description of the process of pursuing a claim.

Awards for injuries

Money may be awarded to compensate for pain and suffering and for injuries. This is called a 'general damages' award. The size of this award is determined by the severity of injuries and the suffering they have caused. The award will take into account the effect on an injured person's life, for example, inability to do normal day to day tasks, or play sport or enjoy other recreational activities as a result of the injuries suffered. Damages may also be awarded for emotional or psychological suffering caused by the crash.

Awards for financial losses already incurred

Money may be awarded to compensate for money already spent or lost as a result of injuries. These past losses are called a 'special damages' award.

Special damages may include:

• loss of earnings
• medical fees and equipment
• mobility aids and special housing
• carers (professionals or relatives)
• travelling expenses

Awards for future losses

Money may be awarded to compensate for expenses that will be incurred in the future as a result of injuries. Awards for future losses may include:

• loss of future earnings, including likely pay rises and promotions
• loss of pension rights
• on-going medical costs, eg. physiotherapy
• medical fees and equipment
• mobility aids and special housing
• carers (professionals or relatives)
• travelling expenses

Compensation for bereavement

If your case also involved a loved one being killed, then you may be able to claim compensation for the death. See our online bereavement guides for more information.

Preparing and negotiating your claim

Preparation of a claim by your solicitor takes time. The extent of injuries suffered will need to be proven by medical reports. Financial losses will also need to be proven; for example loss of earnings being proven by an employer. It is important to keep all receipts of expenses so past financial losses can be calculated accurately and proven.

Once your solicitor has prepared your claim, they will contact the motor insurer of the responsible driver from whom you are trying to claim (the other side). If the other side admits liability your solicitor will start negotiating with them to determine how much compensation they should pay.

Most claims are settled through negotiation rather than court action.

The other side may try to argue your claim is too high. For example, they may try to argue that injuries are less severe or less debilitating. The other side has the right to check injuries and losses stated by your solicitor. They may carry out their own investigations to check a claim is accurate.

Knowing that lawyers and insurance companies are negotiating over the value of your claim can be distressing, particularly if your case takes time to be resolved. The time taken depends upon:

• how long it takes to collect all the evidence, including medical reports describing the severity of injuries and their long-term effect;

• whether the other side disputes liability for the claim or the amount being claimed.

It is not necessarily in a claimant's best interests to ask for a claim to be settled early. This could result in less money being awarded than due. However, if a claim is likely to take some time it may be possible to receive an early, partial payment called an Interim Payment (see below). This can be helpful for people facing financial hardship as a result of their injury, for example if they cannot work in their previous employment.

Ask your lawyer to keep you updated on a regular basis about how your case is progressing.

Offers made during negotiation

Both your solicitor, and the other side, can make offers of compensation during negotiations. Either side has a right to accept or reject an offer. Your solicitor should explain any offer you receive, and help you decide your response.

Either side may also propose a Final Settlement offer, or Part 36 offer, in full and final settlement of your claim. If the other side propose a Part 36 offer, you and your solicitor have 21 days to accept or reject it (although an offer can be accepted later if it has not been withdrawn).

You should consider all offers seriously.

Going to court

If level of compensation for injuries cannot be agreed through negotiation, or if liability is not admitted, your solicitor may start legal action against the other side with an anticipation your case will be heard in court.

However, even after legal action has started, your solicitor is likely to continue to try to negotiate a settlement with the other side. Sometimes, the other side will make an acceptable offer just before a case is heard in court.

If agreement cannot be reached, your claim will be heard in a County Court or the High Court by a judge. There is no jury involved. If your claim is for a small amount of money, it is likely to be heard in court within six months. Substantial claims may take longer to be heard.

Success in court is not guaranteed; you cannot pre-determine the decision of a judge. 

Cases brought on behalf of children

Cases brought on behalf of children are always decided in court. In most cases, money awarded is kept and administered by the court in a special account until the child is 18.

Appeals

If you disagree with a judge's ruling, you should talk to your solicitor. Appeals can be made but there are limited grounds for doing so. Appeals must be made within strict time limits. These time limits are usually within one or two weeks of the judge's ruling.

To proceed with an appeal your solicitor must show that the judge was wrong or that the decision was unjust because of a serious error in procedure. In most cases your solicitor will have to obtain the permission of another judge to go ahead with an appeal.

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 This serious injury guide has been written thanks to sponsorship from Slater and Gordon.

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Serious injury guide: Hiring a solicitor to claim compensation for you

There is no automatic compensation for people seriously injured by a road crash. However, compensation can often be awarded through a legal process, pursued by a solicitor you hire,  using civil law. In some cases, very large amounts of money can be awarded.

Awarding compensation using civil law is not dependent on a driver being found guilty under criminal law of any traffic offence. Even if an injured person was partly responsible for the crash, it may still be possible to obtain compensation from a driver whose actions were also partly responsible.

Compensation payments are not dependent on the responsible driver being able to pay any money themselves. The compensation is usually paid by their motor insurer. If they were uninsured, or are untraceable, then the money is usually paid by an organisation called the Motor Insurers' Bureau.

A suitably qualified and experienced solicitor can identify if you have a claim for compensation, pursue a claim on your behalf, and work to ensure you are awarded as much money as possible.

The rest of this page gives you advice on hiring the right solicitor and funding your solicitor.

Hiring the right solicitor to pursue compensation

To pursue compensation, you need to hire a solicitor. You are advised to use a solicitor with a specialism in personal injury motor compensation claims. The following organisations provide lists of these solicitors:

The Motor Accident Solicitors Society: 0117 925 9604

The Association of Personal Injury Lawyers: 0115 958 0585

A solicitor you are considering using should agree to meet with you for free initially, to advise you on whether they think you have a claim or not. You may wish to meet with more than one solicitor. Different solicitors have different expertise and experience, different fees, and different ways to pay them.

It is important you understand any agreement you sign with a solicitor; particularly any costs involved in them pursuing compensation for you.

Here are some questions that it is appropriate to ask a solicitor you are considering hiring:

• Are you a member of the two organisations listed above?

• How many serious injury traffic claims have you handled in the past year?

• Have you handled claims similar to this one recently? For example, claims with the same type of injuries? If so, can you describe these claims and their success?

• Will you handle this case, or will you pass it on to other solicitors who I haven't yet met? If so, can I meet them before hiring your company?

• How will I pay you, and how much will it cost me if I win and if I lose?

Also, consider whether the solicitor listens to your questions and answers them with care.

If you are in any doubt about a solicitor, consult another. Some claims take years to process, so it is very important that you are happy with your solicitor of choice.

Your nearest specialist solicitor may work some distance from your home. However, it is more important to hire a specialist than a solicitor near you, or one you know already. You can do a lot over the phone, by email and post. Some solicitors can visit you at home.

Do not delay consulting solicitors 

If you have a good chance of compensation, the solicitor you hire will want to work on your case as soon as possible. It can take time to compile evidence to support your case, and the earlier you hire a solicitor, the sooner compensation can be awarded.

Claims must be submitted within three years. Three years may sound a long time but claims can take time to prepare. Sometimes it takes time to determine the severity of the injuries and the long-term effect on the injured person's life both at home and at work. Evidence needs to be collected and medical reports need to be obtained from doctors.

The time limits are extended for children and also for adults who have mental health problems which prevent them from managing their own financial affairs.

Talking to your solicitor

Your solicitor should be available to talk to you regularly, on the phone or face to face. They should explain what is happening in straightforward terms and answer your questions.

It is a good idea to keep notes of conversations with your solicitor and copies of correspondence so you can keep track of your claim.

Ensure you know who is handling your case. Sometimes several people in a solicitor's office may work on your case.

Rogue offers of help     

You may be approached by someone offering to handle your claim for a straight percentage of your compensation. You may see adverts offering this service. This method of payment is called a contingency fee or Damages Based Agreement, and is not the same as a conditional fee, although, confusingly, may be referred to as 'no win, no fee' agreements.

If you are awarded a lot of money you will probably have to pay an unreasonably large amount of money to the person handling your claim. You are therefore advised against agreeing to this method of payment.

Contingency fees are often proposed by someone called a claims assessor or claims farmer, or a claims management company. Claims assessors are not personal injury solicitors. They are neither qualified nor regulated to the standards of solicitors. 

You may also be approached by someone representing the other side's motor insurance company, offering to settle your claim directly and quickly with you, without the need for you to hire a solicitor. This is also not a good idea as it can result in you receiving much less compensation than you are due.  

Complaining or changing solicitor

If, at any stage, you are unhappy with the service you are getting from your solicitor, you can ask to speak to the partner in the practice responsible for looking after clients; often called the complaints partner. If you remain dissatisfied, it may be possible to change solicitor. The organisations listed above will be able to give you advice about alternatives.

Paying your solicitor

Some people pay their solicitor as they go along, either because they have the funds to do so, or they own an insurance policy that covers legal expenses. Your solicitor can help you check any insurance policies you own to find out if you are covered.

Many people do not have available funds to pay a solicitor to pursue a claim for them. However, if you have a good claim, it should be possible to reach an agreement with your solicitor that means you only have to pay a small amount, or even nothing, if you lose your claim. If you win, the person you are claiming from will usually have to pay most, or all, of your solicitor's legal fees and expenses. Depending on the agreement you signed with your solicitor, you may however have to pay your solicitor additional funds from your compensation.

There are complex laws governing how solicitors are paid in compensation cases. It is important that you understand, from the beginning, how your solicitor intends to cover the costs of your claim and any fees you may personally be liable for, at any time, if you win or lose your claim.

It is particularly important that you do not sign an agreement that would result in your solicitor unreasonably obtaining a large amount of your compensation if you win your case, or you being liable for hefty legal costs if you lose your case.

Read more

The process of claiming compensation

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This serious injury guide has been written thanks to sponsorship from Slater and Gordon.

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There has been no justice

Some people affected by a road crash are unhappy with the punishment given to someone who was held to blame, or the outcome of a claim for compensation. It can also be hard to bear if there is no-one to blame, or if you, or a loved one, was in some way to blame.

You may have other on-going concerns that have direct impact on your emotional well-being, such as issues around appropriate housing for someone with life-changing injuries.

What you can do

Seek support from relevant organisations

Brake's helplinecan provide practical assistance if you feel you need help getting justice, or help liaising with a relevant authority.