The vast majority of personal injury claims are settled out of court, however there are certain circumstances that will make it necessary for us to take your case to court in order to get the best possible outcome.
Circumstances when it may be necessary to take your claim to court include:
Case Complexity
Complex cases which can prove to be difficult to settle outside of court include:
Defendant denial of liability
If the defendant denies responsibility for causing your accident or injuries, or we cannot reach an agreement on a suitable compensation settlement with your opponent, we will start court proceedings.
Unresponsive defendant or insurer
If the defendant or their insurer is unresponsive or slow to respond, it is possible to apply to the court to start proceedings. At this stage the defendant is legally obliged to respond, and should appoint their own solicitor if they have not already done so.
Interim payments
If your injuries mean that you need to pay to have urgent treatment, or have been left unable to afford everyday living expenses, your solicitor can apply to the court for an interim payment.
In most instances you will not be required to attend court in person, it is dependent upon the estimated value of your case.
Fast Track Cases: If your claim is estimated to settle between £1,000 – £25,000, this is known as a ‘fast track case’.
Multitrack Cases: If the estimated value of your claim is over £25,000, this is known as a ‘multitrack case’. Multitrack claimants may be expected to attend court, where they will be asked questions about what happened to them from their own representative and from the defendant’s representative.
There is still a very good chance that your claim may settle out of court even after proceedings have commenced. In fact only a small minority of cases that are started at court do not settle without the need for a court hearing. Usually, neither party involved in the claims process wants to go to court, due to the increased legal fees which a court hearing brings, and so it is likely that your solicitor and the third party defendant or their insurer will be able to negotiate an appropriate settlement
Most compensation claims are settled out of court as solicitors follow what is known as the ‘Personal Injury Pre-Action Protocol’ when handling claims. The pre-action protocol for personal injury claims is in place to help both the claimant and the defendant’s solicitor settle the claim without the need to go to court.
The pre-action protocol works by encouraging both parties to share information on the case at an early stage, in order to use a form of alternative dispute resolution to settle the claim.
Step 1 – Early Notification: The first step of the process requires the claimant’s legal representative to contact the defendant as soon as the claim is made. It is required that the defendant acknowledge that a claim is being made against them before they are sent a formal letter of claim.
Step 2 – The letter of claim: This is a letter which is sent to the defendant to outline the precise nature of the claim including details such as what injuries were sustained by the claimant and any financial losses incurred. The letter should provide the defendant with enough information to allow them to investigate the claim to assess their own liability and the likely claim value.
Step 3 – Preliminary response: After the letter of claim has been sent the defendant has up to 21 days to issue a response. This is the defendant’s opportunity to include any information relating to the claim that they feel is missing and of importance to the outcome of the case.
Should the defendant deny liability they will need to respond by supplying their own version of events in as much detail as possible.
If the defendant or their insurer fails to respond to the letter, court proceedings can begin.
Step 4 – Investigation: Once the defendant has issued the preliminary response they have up to three months to investigate the claim and to admit or deny liability.
Step 5 – Special damages: The claimant is required to send the defendant a Schedule of financial losses suffered, such as loss of earnings, with supporting documents related to the claim.
Step 6 – Experts: External experts such as medical professionals are used to provide a full medical report and assessment of the claimant’s illness or injury. The protocol encourages the claimant and the defendant’s legal team to appoint a mutually agreed expert. It is common practice for the claimant to obtain a medical report, which will then be disclosed to the defendant to agree with the findings or to raise any issues that they may have.
Step 7 – Rehabilitation: It is necessary to consider as early on in the claim as possible if the claimant needs to have rehabilitation treatment, to help them to recover from their injuries. Both parties are expected to follow the Rehabilitation Code to recognise the claimants’ needs and to work out what funding will be required to pay for any treatment.
Step 8 – Resolution of issues: If the defendant admits liability the claimant is required to delay any proceedings for 21 days. During this time period both parties must consider a settlement.
Step 9 – Failure to comply: The court has the authority to impose sanctions against both parties if they fail to follow the pre-action protocol. Sanctions can be very costly and can include:
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