Derby Accident Claims Solicitors

McIntosh Fleming Lawyers, specialise in no win, no fee , Derby accident compensation claims, and we guarantee that you keep all of your compensation without any deduction for our charges. Get in touch with Derby Accident Claims Solicitors by e-mailing gary.dickie@btinternet.com , or ring us on 01332 518135 .

First Steps

Initial assessment

After seeing you we obtain all the information from you. We will then give you our initial view on the prospects of success and indicate the likely time scale involved. We shall try to estimate the likely cost of your claim and advise you on your options for funding it. We will inform you of our terms and conditions of business and we will also advise you what steps should be taken.

Initial action

We will confirm in writing what was discussed and agreed upon at the initial interview and complete arrangements for the funding of your claim.

We will then commence initial enquiries on your behalf and contact your opponent and all other interested parties.

Thereafter we will report any significant developments and advise you throughout the claim generally. In particular, we will review the value of your claim and the prospects of your claim succeeding, notify you of any significant expenditure and monitor the costs that have been incurred and which we estimate will occur.

If liability (ie blame for the injury) is not formally admitted, we will interview all relevant witnesses and prepare the evidence to support your case on liability. We will also prepare the evidence necessary to prove your claim for damages.

Rehabilitation

We will discuss with you and consider whether you need any treatment or rehabilitation to assist your recovery [and return to work]. It may be necessary for us to consult with your treating consultant or medical practitioner or a rehabilitation consultant. It is sometimes possible to arrange for your opponent’s representatives, commonly their insurers, to pay for a rehabilitation assessment and even for the treatment.

Negotiations

We will contact the opponents on a regular basis with a view to negotiating an early settlement of your claim, where this is appropriate. In some cases it is possible to negotiate an early admission of liability where, for example, the accident circumstances are relatively straight forward but where your injury has yet to resolve or further evidence is awaited before the claim can be properly valued. We shall endeavour to limit the issues in dispute in order to simplify the proceedings and to speed up your claim and to reduce costs. If an issue remains unresolved, then we will prepare the evidence to prove that issue and we will even commence proceedings if necessary. However, we shall try to avoid formal proceedings where we can by pursuing the various alternative methods of achieving a negotiated settlement of your claim on terms that are just and fair to you.

Your duty to search for and to disclose documents

The Civil Procedure Rules (CPR) require all parties to exchange information about a claim before proceedings have been commenced and also afterwards. This includes a duty to search for and to disclose documents that are or have been in your possession or control. Disclosure in this context means revealing the existence of a document and allowing your opponent to inspect if you still possess it.

This duty includes electronic documents, such as text files and emails, so it is important to avoid accidentally deleting this material where you consider it could be relevant to your case.

This obligation encompasses not only those documents that you intend to rely on to prove your claim, but also documents which:

  • adversely affect your case;
  • adversely affect another party’s case; or
  • support another party’s case.

In other words, you are required to disclose any document that might be relevant to the claim, even if it is potentially harmful to your case.

You are required to carry out a reasonable search in order to identify the documents. If you encounter any problems in tracking down any potentially relevant documents, please consult us. It is important to emphasise that if it becomes necessary to commence proceedings you will probably be required to serve a formal list of your documents supported by a written ‘disclosure statement’:

  • setting out the extent of your search;
  • confirming that you understand your duty to disclose documents; and
  • certifying that you have carried out that duty to the best of your knowledge.

If it subsequently transpires that you have failed in either duty, this will not only affect your credibility as a witness but also lay you open to a court penalty for contempt of court. Inadvertent non-disclosure is likely to result in your being prevented from relying on the document at trial.

It is vital that you tell us about and disclose to us any documents that may be relevant to your case, if we are to be able to advise you properly. We shall advise you if any of your documents are privileged from disclosure or are otherwise inappropriate for disclosure and we will prepare the formal list of documents for you.

The Personal Injury Pre-Action Protocol

The CPR also impose new pre-action procedures which oblige both parties to a potential claim to co-operate with one another much earlier than before, even before proceedings have begun:

  • by exchanging full information about the case;
  • by discussing the issues involved;
  • by exploring the possibility of settling the claim or at least limiting the issues in dispute; and
  • by jointly instructing a single expert (for example a medical consultant) to report to the court, where appropriate.

The protocol is specifically intended to reduce the parties’ reliance on the Court Service, by encouraging earlier settlement outside proceedings where possible. Furthermore, for those cases that cannot be settled in this way, it aims to accelerate and improve the case preparation before commencement of proceedings.

The protocol requires you to write a letter of claim to your opponent giving:

  • a clear summary of the facts on which your claim is based;
  • outlining the nature of your injuries;
  • and summarising any financial loss that you have incurred; and
  • requesting details of your opponent’s insurers, if unknown.

You must give sufficient information to allow the Defendant and/or the insurers to commence investigations and to put a broad estimate of the claim. We will prepare this letter for you.

We will also consider at an early stage whether you will benefit from any medical treatment, therapy or other assistance or rehabilitation in order to speed up your recovery. It may be possible to arrange for your opponents to fund the cost of your rehabilitation.

Your opponent has 21 days in which to respond with details of the insurers, otherwise you are entitled to commence proceedings without further notice. If your opponent replies within the 21-day period, then the insurers will have three months to investigate the claim. However, the insurer should, by the end of this three-month period, state whether liability is admitted or denied. In the latter case, an explanation must be given. This procedure has the additional advantage of letting you know what your opponent’s response to your claim will be that much earlier than under the previous civil justice regime.

We will draft your letter of claim for you, in the same way that we will prepare your statement of case should it become necessary to commence proceedings. However, since what you say in this letter will have a bearing on the claim later on, it is vital that the allegations in the letter are correct. We will usually ask you to approve the letter of claim before it is dispatched.

We are required to write a formal letter of claim as soon as sufficient information is available to substantiate a realistic claim against the Defendant (before a detailed assessment has been made as to the value of your claim).

You are required to provide a schedule of your losses and expenses and copies of documents that prove your losses and expenses, as soon as reasonably convenient.

Offers to settle made by your opponent

Once your opponent or the Defendant insurers have completed their investigation, they are likely to make a formal offer of settlement if liability is admitted and the extent of your injuries and losses are known. It is also possible to secure an admission of liability before your injuries have fully resolved or the extent of your losses are known. We will endeavour to limit the number of issues in dispute where we can. This may involve us in informal negotiations on your behalf. This will have important consequences on your right to recover your legal costs. We will advise you fully as and when such an offer is made.

Letter before action

Before proceedings are issued, we will write to the opponent, to warn them of our intention to commence proceedings. Where appropriate, we will renew any discussions in an attempt to settle your claim. We shall try to avoid the need for proceedings, where possible. If this is not possible we shall also try to agree neutral issues in order to simplify the matters in dispute.

Mediation and alternative dispute resolution

Where your opponents do not accept our terms of settlement but we feel that it would be to your advantage to continue the negotiations on your behalf, we will consider the possibility of alternative dispute resolution (ADR). ADR can take various different forms. It could involve the appointment of an independent mediator and an informal meeting with your opponents; it would be necessary for you to accompany us to that meeting. A mediator’s role, if appointed, is to find areas of agreement between the parties and to encourage a fair settlement without involving the formality, cost and time of a Court hearing. Mediation can take place before or after proceedings have commenced and the same applies to other forms of alternative dispute resolution, such as informal discussions and negotiations.

Before proceedings are commenced

We will undertake a careful review of the evidence and advise you of the prospects of success. We will also advise you of the costs incurred to date, reassess the anticipated costs of the claim and inform you of the consequences to you of the claim failing. Your potential liability for your opponent’s costs, should you lose, only begins with the issue of proceedings. We will obtain your permission before commencing proceedings. We shall endeavour to avoid court proceedings where we can.

Offers to settle by you

You can make a formal offer to settle to your opponent. You must state exactly what you will accept in compensation and you should be prepared to accept this if it is subsequently agreed. In doing so, you will increase your opponent’s financial risk should this offer be declined and your claim proceed to a hearing. Whilst this may encourage an earlier settlement it may also reveal your minimum settlement figure.

Time scales

Because of the strict time limits imposed by the Court once proceedings have started, it is important that most of our enquiries and preparations are undertaken prior to issuing proceedings. This will reduce the risk that part or all of your claim will not be disallowed due to a failure to adhere to the  directions.

An important time limit

The Limitation Act 1980 imposes a three-year time limit for commencing Court proceedings for a personal injury claim. This period runs from:

  • the date on which the cause of action accrued, ie the date of the accident; or
  • if later, from the ‘date of knowledge’ of the person injured.

Special considerations apply to persons who die from their injuries within the three-year period and to children.

Only in exceptional circumstances can a personal injury claim be brought outside the statutory time limit.

Commencement of proceedings

It is our policy to commence proceedings well within the three-year statutory limitation period. In a claim for personal injury you are obliged to file a medical report at Court, for filing the papers with your request for issue.

Generally

We depend upon your full co-operation and complete instructions to progress your claim effectively. We need to see any documents or records that may be relevant to your case at the earliest possible opportunity. We shall decide which documents are relevant.

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