I've been injured so why won't a solicitor take my claim on?
You may have been injured in an accident that was not your fault. Despite this, a personal injury solicitor still might not take on your case. Why?
What are the criteria for making a claim?
To make a successful personal injury claim;
- your injury must have happened within the last three years (in most cases) and,
- the injury must have been caused by another party that owed you a duty of care (e.g. another driver, or your employer).
Your personal injury claim must, therefore, meet three key criteria;
- Limitation - It must have happened in the last three years
- Causation - the accident was the direct cause of the injury
- Liability - a person or entity owed you a duty of care and was responsible for the injury
I meet the above criteria so an injury solicitor will take on my claim, right?
Maybe. Assuming that you meet all of the above, you will still need to get through the solicitor's claim 'vetting' or 'risk assessment' procedure.
What is the solicitors claim vetting process?
After you have given a solicitor all of your details about your injury, the solicitor will ask further questions that help them decide whether to take your case on.
The £1,000 rule
The solicitor will want to ensure that the total of general and special damages exceeds £1,000 - the small claims court limit. If the claim is worth less than this then the solicitor will not be able to recover their costs from the defendant.
A solicitor will consider a claim worth less than £1,000 to be ‘low quantum’.
What about the changes to the law in 2020?
The law relating to personal injury claims is changing in April 2020.
The small claims court limit is increasing from £1,000 to £5,000. This means that a solicitor will consider a claim valued at less than £5,000 as 'low quantum'.
In addition, compensation for whiplash and other soft-tissue injuries will be reduced.
Many solicitors will not take on a case that only has a few months (sometimes even a year) left before the 3-year time limit expires.
This is because formal court documents must be filed before the time limit expires. A significant amount of work (e.g. sourcing evidence, arranging medicals, etc.) needs to take place before court documents can be filed. Most solicitors don't want to take the risk of committing resource to a claim and then running out of time.
Assuming that you have a claim and that the other side accepts liability, negotiating an appropriate level of compensation also takes time. Further medical exams or expert witness statements may be needed to establish the severity of your injury.
It may be, for example, that you have suffered a serious injury in a public place and it is likely that another party owed you a duty of care. Some solicitors will be more than happy to take the claim on if it happened in a supermarket but not if it occurred in a public place maintained by a local authority.
The reasons could include:
- The solicitor doesn’t have specific experience of fighting local authorities.
- The firm thinks such claims require too much work.
- The firm's ability to 'bankroll' lengthy cases.
- The firm has a poor track record with claims like these and cannot obtain suitable ATE insurance cover.
Acceptable financial risk
Once a personal injury solicitor has verified that you meet the basic criteria, they will want to make sure that you represent an acceptable financial risk for them. Crudely speaking - is there enough money in it for them?
Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced in 2013; solicitors success fees are no longer recoverable from the defendant. Success fees are also now capped at 25% of the claimant's damages.
The personal injury sector is heavily regulated and has been subject to ever-increasing restrictions governing conduct in the industry. Solicitors have welcomed many of these regulatory changes. However, the commercial landscape has made it difficult for inefficient firms to run personal injury claims at a profit.
Will the solicitor tell me I could claim through another firm?
They should, but often they don't. Firms are typically less than helpful in suggesting that your claim may be taken on by another firm. They will often tell you that they can't take your case on.
If your claim is initially turned down by a solicitor, you should seek a second opinion.
Surely 25% of my injury award is enough for a solicitor?
It may well be. Some claims run into hundreds of thousands of pounds.
25% of a sizeable award like that should keep the solicitor from starving. In reality, more valuable claims are often taken on for a lower percentage success fee. The success fee will be agreed between you and your solicitor at the beginning of the claim.
Lower value claims (e.g. £2,000 for a whiplash injury) mean a solicitor may only recover £500 in success fees for months of work and no certainty of winning.
So solicitors only take on the 'dead certs'?
No, but most solicitors working on a conditional fee basis will want to make sure that they have a strong chance of winning (more than 50%).
To estimate the probability of success, solicitors employ a complex flowchart process.
If the defendant has accepted liability from the outset, the solicitor is almost certain to take on your claim - assuming that the quantum is acceptable.
What if my case has a less than 50% chance of success?
Some firms are more flexible than others. If the case is of higher value, the solicitor may reduce the risk threshold.
Of course, a firm will happily take on any claim when the claimant is self-funding. If the claim is to be funded by no win no fee, however then the risk aversion shutters tend to come down.
Isn’t no win, no fee meant to help people?
Yes, and in theory, it provides access to justice for anyone who has been injured and is seeking to make a claim.
The problem is that conditional fee agreements are underwritten by ATE insurance. ATE insurance is a self-insuring policy whereby the claimant takes out an insurance policy after the outcome of the case is known. The policy is then paid for by the defendant if the claim is successful.
If the solicitor takes on cases that they keep losing, the solicitor will find it increasingly challenging to obtain ATE cover. If the solicitor is unable to secure ATE cover for their clients, they will go out of business.
So what should I do?
The best thing to do is to speak to a few firms and ask them outright whether your type of claim is of interest. You should then negotiate on fees - but remember you do need a solicitor to be commercially motivated to fight your corner.
How can Quittance help?
Your solicitor will fight for the best possible compensation settlement for you, the highly-experienced panel of solicitors have an excellent track record of winning injury claims.
If you have any questions, or would like to start a No Win No Fee claim, we are open 8am to 9pm weekdays, 9am to 6pm on Saturday, and 9.30am to 5pm on Sunday.
Call us FREE 0800 612 7456 or arrange a callback:
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