I have a strong claim - why won't a solicitor take it 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 3 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 vetting procedure.
What is the solicitors vetting process?
After you have provided all of the details about the injury, the solicitor will ask a further set of questions that help them decide whether to take the 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 claim to be ‘ low quantum’.
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. As 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.
Assuming there is a claim, and that the other side accept 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 that, for example, 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 happened in a public place maintained by the local authority.
The reason for this could be threefold:
- the solicitor doesn’t have specific experience of fighting local authorities
- the firm thinks such claims require too much work.
- the firm has a poor track record with claims like these and cannot obtain suitable ATE insurance cover.
Often firms are less than helpful in suggesting that your claim may be taken on by another firm. They simply tell you that they can't take your case on.
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 in it for them?
This is not to be overly critical of solicitor firms. The personal injury sector is heavily regulated and has been subject to ever increasing restrictions governing conduct in the industry.
Since 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 claimants damages.
Surely 25% of my personal injury award is enough for a solicitor?
It may well be. Some claims run into hundreds of thousands.
25% of a sizeable award like that should keep the solicitor from starving. In reality, more valuable claims are taken on for a lower percentage success fee - this being negotiated with the claimant.
Less valuable claims, say £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 almost all solicitors working on a conditional fee basis will want to make sure that they have a strong chance of winning (more than 50%) and they employ a complex flowchart to ensure that this is the case.
If the defendant has accepted liability from the outset, the solicitor is almost sure to take the claim on assuming that the quantum is acceptable.
What if my case has a lower chance of success?
Some firms are more flexible than others. If the case is more valuable, they 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/
Wasn’t no win no fee meant to help people?
Yes, and in theory it provides access to justice for all people injured seeking to make a in claims.
The problem is that conditional fee agreements are underwritten by ATE insurance. This insurance is a self-insuring policy whereby the claimant tales out an insurance policy after the outcome of the case is known and it is paid for by the defendant.
If the solicitor takes on cases that they keep losing, the solicitor will find it increasingly difficult to get ATE cover. Without ATE cover they have no 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 motivated to fight your corner.
How can Quittance help?
Quittance is a panel of personal injury solicitors. The panel is designed to be able to take on all types of claim, no matter how niche, and to offer specific expertise in these areas
We are always open to a discussion on success fees and will consider each case on its own merit.
Our panel are selected for their track record. By ‘track record’ we mean how likely they are to take on a case and win it.
We also work with a team that specialise in ‘long shot’ cases.
To speak to us about your claim call 0800 612 7456.