Derby Accident Claims Solicitors

McIntosh Fleming Lawyers, specialise in no win, no fee accident 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 .

Court Proceedings

Commencement of proceedings

It is our policy to attempt to negotiate an amicable settlement of our clients’ claims as soon as possible and, failing which, to commence proceedings as soon as possible within the three-year limitation period. In a claim for personal injury you are obliged to file a medical report at court, before it will issue the proceedings.

If you start the proceedings, you are called the ‘Claimant’, and your opponent the ‘Defendant’.

If your claim is valued at less than £50,000 it will usually be commenced in the County Court by issuing a Claim Form. Claims worth in excess of £50,000 tend to be brought in the High Court. It is necessary to set out the basic facts about your claim in a formal document called the Particulars of Claim. This is usually served at the same time as the Claim Form.

Statements of truth

The CPR require that the following documents that have been prepared by you or on your behalf are formally verified by a ‘statement of truth’:

  • The Claim Form.
  • The particulars of claim or defence.
  • Your witness statement, which sets out the evidence that you will give if the case proceeds to a hearing.
  • Any application notice; these are used to seek interim orders and directions on your behalf within the proceedings.

It is important that you are satisfied that these documents contain a full and accurate statement of your case, since any subsequent changes are likely to affect your credibility as a witness. Accordingly we will ask you to check these documents very carefully before they are filed at court or served on your opponent. Any intentional inaccuracy is likely to leave you exposed to a court fine or even a term of imprisonment.

Service of proceedings

We will advise you when the proceedings have been served on the Defendant (your opponent) and when we expect to receive the Defence (usually within 14 days of service). Sometimes the Defendant will ask for more time, and can obtain an additional 14 days as of right by filing an acknowledgement of service form. The Defence is the Defendant’s formal response to your claim. Once this is received we will forward it to you and advise you accordingly.

If liability is admitted

If the Defendant admits blame for the accident or fails to file a Defence in time we will apply for an interlocutory or a default judgment; this settles the issue of liability. The amount of your entitlement to compensation is left to be decided either by the court or by negotiation with the Defendant.

If liability is disputed

If the Defendant denies liability and sets out an arguable case in the Defence, then the Court will send out an allocation questionnaire to all the parties. This form is intended to assist the court decide how to deal with the case. We are required to complete and return your questionnaire together with a court fee to the Court within 14 days. Any delay is likely to result in a court penalty. It is also open to us to ask for further information or clarification of the Defence, if necessary.

Directions

On returning the allocation questionnaire form, either party can ask for any specific directions they need, including a stay of the proceedings for up to one month, to try to settle the claim. The court can, of its own initiative, grant time for the parties to mediate or undergo alternative dispute resolution procedures if there is a chance that the parties can settle their differences amicably. The court will then decide how to allocate the claim within one of the three different procedural tracks: small claims, fast-track claims or multi-track claims.

Allocation of claims

This procedure enables the court to apply the overriding objectives of the CPR, which includes managing claims in a way that is proportionate to its value and complexity and applying  other principles .

Minor injury claims will be dealt with informally and expeditiously within the small claims track. Usually, this involves the court issuing simple directions for disclosure of documents and evidence and later setting an early hearing date. The Court can give notice of its intention to deal with the claim without anyone attending a hearing, with the parties’ consent. Only minimal solicitor’s costs are awarded under this system.

Most personal injury claims over £1,000 in value will be allocated to the fast track. If this procedure is selected, the Court will then issue directions for the future management of your claim after considering what the parties have stated in their allocation questionnaires, with a timetable for each step clearly set out.

In a typical case, these steps are likely to include:

disclosure of documents within 4 weeks
service of written witness statements within 10 weeks
exchange of evidence from experts within 14 weeks
listing questionnaires sent out by the court within 20 weeks
filing of the listing questionnaires by the parties within 22 weeks
notification of the hearing date by the court within 24 weeks
the hearing date itself within 30 weeks

The court timetable must be strictly adhered to; failure to do so is likely to incur financial and other penalties. Only in exceptional cases will the court allow expert witnesses to give evidence in court. Instead the court will encourage the use of jointly instructed single experts, who will report to the court and whose reports will be read out at the hearing.

A fast-track hearing is given a maximum of one day for the hearing, often much less time. The court will encourage the parties to focus on the issues in dispute and to limit the evidence before the court where possible to simplify and accelerate the management of the case.

In more complicated claims, for example where several experts are likely to be required or where the value of the claim is likely to exceed £15,000, the Court will probably allocate your claim to the multi-track procedure. This track provides for a more flexible approach to the management of the case by the Court. The Court will usually issue directions immediately in most cases and then fix a case management conference or pre trial review appointment, to help the parties and the court decide on the most appropriate means preparing the case for trial. The Court will probably require you to attend a case management conference and/or a pre trial review. The parties will still be encouraged to try to settle their differences. If this is not possible the court will try to list the claim for a final hearing within a year of commencement.

Interlocutory applications

During the course of your claim, it is possible to ask to the Court for specific directions in order to assist the preparation and progress of your claim generally. The standard directions set out above are usually sufficient for most personal injury claims. A party losing an interlocutory application is likely to face an immediate costs order, which will be payable within 14 days.

Immediate costs orders

In all interlocutory applications and final hearings lasting less than one day, the Court is likely to make a summary assessment of costs at the hearing itself. Accordingly, most fast-track cases will be subject to summary cost assessments.

Continuing negotiations

We will review the merits and value of your claim as your claim progresses and further evidence is gathered and exchanged. We shall continue our dialogue with the opponent and try to settle the claim without the need to trouble you with a Court appearance. The majority of claims settle without proceeding to a hearing.

Defendant insurers often like to make a Part 36 payment into Court after exchange of expert evidence. The payment is intended to reflect the value that they put on your claim and this has important cost consequences that we will advise you about, as and when this occurs.

Part 36 offers to settle

It is open to a defendant to put you at risk as to the costs, once proceedings have started, by offering to pay such sum as is believed to be sufficient to compensate you. If you reject the offer and proceed to a hearing the judge will not know about the payment. If you fail to beat the opponent’s offer at trial or obtain a less advantageous award, then you will be ordered to pay the opponent’s costs from the latest date when you could have accepted the offer, unless the court considers this would be unjust.

Preparation and listing for trial

If it is not possible to settle your claim without proceeding to a hearing then we will contact you and any other witnesses (including any experts whose attendance at court is required) before applying to the Court for a hearing date. We will wish to find out which dates are inconvenient. Because a substantial proportion of your legal costs will be incurred in the final preparations for and in attending the trial itself, we will carry out a further review of the evidence and merits and review the value of your claim at this stage. If your claim is allocated to the fast track, the court will take the initiative by sending out a listing questionnaire to the parties.

The hearing

We will arrange for you to be represented at the hearing. The Court will consider the evidence and reach a decision on liability, if appropriate, and on the value of your claim.

If you are successful, the Court will assess the value of your claim and include this in the judgment. The usual rule is that the loser pays the winning party’s costs.

In a fast-track case, the hearing is restricted to a maximum length of one day.

Steps following the hearing

Moneys received under a judgment or paid out of Court in your favour are paid to this firm.

We will account to you for these moneys subject to payment of our costs and expenses. If you are a private client our costs will be calculated in accordance with your agreement with us. If you are a legally aided client then we must hold on to the settlement moneys until authorised by the Legal Aid Board to release them to you, following retention of a sum sufficient to cover the Board for any shortfall in costs recovered.

Recovery of costs

In the event of a successful outcome the trial judge will probably assess the amount of costs that the losing party is obliged to pay, at the end of the case and then direct that this should be paid within 14 days. If you are legally aided or your claim is a multi-track case then the usual direction in the judgment will be that the Defendant must pay the Claimant’s costs within 14 days of assessment or agreement. Upon receiving an order for costs in your favour, we will cost our file promptly and request payment from your opponent. It is usual practice for the opponent to object to the level of a Claimant’s costs and accordingly it usually takes four–six weeks to agree costs, where they have not already been assessed summarily at the hearing. There is often a shortfall between the amount of costs incurred on your behalf and the amount of costs actually recovered from an opponent. You will be responsible for any shortfall from your damages. We will try to keep any shortfall to a minimum.

Detailed assessment of costs

Where no summary assessment has been made and if we cannot agree the level of your costs with the opponent then we can apply to the Court to decide the correct level of our fees. This process is called ‘detailed assessment of costs’. The procedure can take several months.

Interim payments

It is possible to obtain a payment on account of your claim from an opponent or his insurers on a voluntary basis, even before proceedings have been commenced. Defendant insurers commonly agree to pay something on account in a claim where liability is not in dispute.

It is also possible to apply to the Court for an interim payment, after proceedings have commenced.

Where liability is disputed, it is necessary to persuade the Court that your claim is very likely to succeed and that you will be entitled to substantial damages against the Defendant. An interim payment application, if disputed, can often amount to a mini trial of the case. If the application succeeds then the costs of the application are potentially recoverable from the Defendant. It should be appreciated that this kind of application can increase the costs of a claim significantly.

It may be possible to advance a substantial proportion of the judgment moneys, once received, provided sufficient moneys are retained to cover any possible shortfall.

Time scales, generally

Because of the strict time limits imposed by the Court, it is important that most of our enquiries and preparations are undertaken prior to starting 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 automatic directions.

Your co-operation

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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