Section 12: Claiming for financial support

To pursue a claim for financial support, you need to instruct a solicitor. You are advised to use a solicitor who specialises in personal injury cases. The following organisations provide lists of solicitors that specialise in personal injury cases:

• The Association of Personal Injury Lawyers
  call 0115 943 5400 or go to www.apil.org.uk

• The Motor Accident Solicitors Society
  call 0117 925 9604 or go to www.mass.org.uk

You can find a list of solicitor firms that specialise in personal injury cases on the Brake website at www.brake.org.uk/legal. All of the solicitor firms listed have signed up to Brake’s Solicitor Code of Conduct for supporting road crash victims, and also kindly donate to the charity.

Any solicitor you are considering using should agree to meet with you for free initially, to advise you 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 and particularly any costs involved in them pursuing a claim for financial support for you.

Here are some questions appropriate to ask a solicitor you are considering:

• How many serious injury claims involving a motor vehicle have you handled in the past year?
• Have you handled claims similar to this one recently, for example claims involving similar injuries? Were they successful?
• Will you handle this case, or will you pass it on to other solicitors in your firm who I haven't yet met? If so, can I meet them?

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

• Will you support me and my family by attending any hearings and criminal court proceedings?

• Will you help me apply for government benefits such as Personal Independence Payments or Carers Allowance?
• Are you a member of MASS and/or APIL?

Consider whether the solicitor listens to questions and answers them fully.

The solicitor may ask you questions that seem challenging or unnecessarily detailed. Do not be put off by this, it shows that they are experienced and will prepare your case carefully.

If you are in any doubt about a solicitor, consult another. Some claims take years, so it is important 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, on video calls, by email and post, and some solicitors will visit you at home.

Solicitors are not allowed to make ‘cold calls’. If you receive a call from someone who you have not contacted, they are likely to be a rogue company whose priority is to make money rather than look after the best interests of you and your family. Only deal with solicitors you contacted.

Do not delay

Do not delay in consulting solicitors. If you have a good chance of getting financial support, 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 financial support can be awarded.

Claims must be submitted within three years from the date of the collision.

Three years may sound a long time, but claims can take time to prepare. Injuries can be complex and it takes time to recover and determine the long-term effects on the injured person's life, both at home and at work. Evidence needs to be collected, including obtaining statements from witnesses and medical reports from different medical specialists.

Time limits for bringing claims are extended for children and vulnerable adults with particular medical conditions that affect their ability to manage the claim or make decisions about their finances or treatment. Your solicitor can advise you about this.

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 questions. You can ask questions if there is something that you don’t understand.

It helps to keep notes of conversations with your solicitor and copies of correspondence, so you can keep track of your claim. Your solicitor will also make notes of your conversations and you can ask them to send you copies of their notes.

Ensure you know who is handling your case. Sometimes several people in a solicitor's office may work on your case but it is important you know who is the lead solicitor who has ultimate responsibility for your claim.

You may be approached by someone representing the other party's insurance company, offering to settle your claim directly and quickly, without the need for you to instruct a solicitor. This is not a good idea as it can result in you receiving much less financial support than you are due. If you are approached before you have spoken to a solicitor, always seek legal advice before accepting or signing anything.

You may also be approached by someone offering to handle your claim for a percentage of your financial support payment. 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 a 'no win, no fee' agreement.

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.

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 are still unhappy, it may be possible to change solicitor. MASS or APIL will be able to give you advice about alternatives.

There are complex laws governing how solicitors are paid in personal injury 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 very unusual for someone to pay their solicitor as they go along in a personal injury case, unless 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.

Most people do not have available funds to pay a solicitor to pursue a claim for them. Most solicitors will act on a ‘no win, no fee’ basis which protects you if the claim is unsuccessful and you won’t have to pay anything. 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 will usually also have to pay your solicitor additional funds from your financial support payment.

It is important that you do not sign an agreement that would result in your solicitor unreasonably obtaining a large amount of your payment if you win your case. You should also be protected from having to pay expensive legal costs if you lose.

Establishing liability

For a claim to succeed, it must be proven that someone was fully or partly to blame for what happened. If that is not the case, then the claim will not be able to proceed and no financial support will be awarded. Your solicitor will advise about this at an early stage. If, after evidence has been gathered, liability is still not admitted by the other party, then the case may need to go to court for the judge to decide.

Financial support

If liability is proven, then the solicitor will need to work out the correct amount of financial support. Different awards make up a claim for financial support and they are listed below. Your solicitor will advise which apply to you.

Awards for injuries

Money may be awarded to compensate for pain and suffering, and ‘loss of amenity’, which means how the injury has affected quality of life. 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 carry out normal day-to day-tasks, play sport or enjoy other recreational activities as a result of 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), and 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 (e.g. 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 it might be possible to claim financial support as a result of their death. Your solicitor can advise you about this and you can also find more information in our online bereavement guides.

Preparation of a claim by your solicitor takes time. The extent of injuries suffered will need to be proven by medical reports. Evidence of financial losses will also be required, for example documents from an employer showing loss of earnings. It is important to keep receipts of all expenses to show past financial losses.

Your solicitor can advise you on what receipts you need to keep.

Once your solicitor has prepared your claim, they will contact the insurance company the driver responsible for the crash, from whom you are trying to claim (‘the other side’). If the other side admits liability, then there will be no need to prove that part of the claim and your solicitor can start negotiating with them to determine how much 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 for themselves and they may carry out their own investigations to check a claim is accurate, such as instructing their own medical experts.

Knowing that solicitors 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 a lot less money being awarded than is due. Generally speaking, if you accept a sum or money, you cannot change your mind and go back to ask for more. A case should progress properly so that evidence is gathered as soon as possible, but it is unsafe to proceed and settle before the clearest possible medical prognosis is available. The settlement amount will need to be enough to support all the injured person’s needs for as long as necessary.

If a claim is likely to take some time it may be possible to receive an early, partial payment called an Interim Payment. This can be helpful to pay for rehabilitation or treatment, or for people facing financial hardship as a result of their injury, for example if they cannot work in their previous employment.

Ask your solicitor to keep you updated about how your case is progressing.

Offers made during negotiation

Both your solicitor and the other side can make offers of financial support during negotiations. Offers can be made over the telephone, in a meeting, letter or email. Some offers are made without any acceptance of liability.

Either side has the right to accept or reject an offer. Your solicitor should advise you about any offer you receive, the risks involved in accepting or not, and help you reach a decision. You should consider offers seriously.

If your claim for financial support 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. It may take many months for a case to reach court.

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

While agreement can be reached by negotiation between the parties, settlements for children are always approved by the court. The court hearing is usually short and fairly informal. In most cases, any money awarded is kept and administered by the court in a special account until the child is 18.

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.