Hi, John here blogging again.
I thought I would continue on roughly the same theme as Rebecca’s last blog – negligent solicitors and what can go wrong, particularly in a poorly run compensation or “litigation” claim.
Rebecca concentrated on the importance of time limits and how claims can fail entirely, be damaged or ruined when solicitors miss those time limits. I thought I would blog on another common theme where solicitors can harm a claim though negligence – quite simply by missing or undervaluing important parts of a claim. This is sometimes called under settling.
These problems can come about in various ways, but a common and pretty predictable theme I have seen is a generally poor level of attention from often very junior and poorly supervised staff who haven’t got the skills to spot relevant issues and pitfalls.
I have a particular dislike of solicitors who run “factory firms”.
I am talking about solicitors’ firms where individual clients receive little or no personal service and are not really treated as individuals. Often several people at the firm, who might not even be proper lawyers, work on a claim, rather than – ideally – one experienced professional solicitor running the claim throughout. They are often based hundreds of miles away from their clients and so the chances of face to face visits are slim to none!
Danger signs include a lack of personal attention, lowly qualifications, avoiding meeting or even speaking to their clients, frequent changes of “file handler” and the use of dangerous “one size fits all” checklists and tick boxes in place of proper conversations and interactions.
These sorts of experiences ring alarm bells for me because they ramp up the risk of important facts or issues simply being missed, misunderstood or undervalued by the solicitors.
Gathering expert evidence is often crucial in claims; for instance good, appropriate medical evidence is vital in running a personal injury or clinical negligence claim well. Poor solicitors might miss certain symptoms or not obtain evidence needed from medical disciplines that ought to be addressed.
I have also seen whole chunks of claims missed off entirely. It might mean for example an incomplete loss of earnings claim has been made, a potential claim for future pension losses has been missed, or a care claim for the support, care and assistance given to an injured person has been ignored.
The bottom line is that this comes down to two pretty simple things, the lawyer asking the right questions (and listening to the answers!) and then having sufficient skill and experience to ensure that the claim is completely and fully presented to best advantage.
I have seen many instances where inexpert, poorly supervised or ill prepared lawyers have missed things and caused their clients to lose out or suffer under settlement.
If you think that your solicitor under settled your claim or missed something crucial from your claim then why not give me a call on 0113 3571165? I will happily have a free chat with you and discuss your concerns.
At any one time I run a number of professional negligence claims against firms of solicitors who have either missed one of Rebecca’s crucial time limits, or else missed or under settled all or part of a claim. Most of these professional negligence claims can be run on a no win no fee basis.
Give me a call!
Rebecca here, blogging again.
Happy New Year (although it’s February now so maybe a bit late to be saying that).
I thought I would take a look at time limits and what happens when a Solicitor misses an important time limit.
Under the Limitation Act 1980, the limitation period for a personal injury claim is 3 years. That is to say that a Claimant has 3 years from the date of the injury, or from the date of knowledge, to commence court proceedings against the party responsible. If a claim is not brought within 3 years of the date of the accident, the claim will be Statute barred.
Sadly, Solicitors sometimes miss this 3 year deadline for whatever reason and this can leave injured Claimant’s in a position where they have a perfectly good claim which can no longer be pursued against the Defendant.
Fortunately for those Claimants (and hopefully you will never find yourself in this position) a claim can potentially be made against their own solicitors for Professional Negligence, if a deadline such as limitation is missed, which leads to your claim being effectively “struck out” and with no option of pursuing it further against the Defendant.
We’ve all seen and heard the adverts “Have you been injured in the last 3 years as a result of an accident that wasn’t your fault”. So it’s pretty straight forward then isn’t it? If you bring a claim within 3 years you will be ok, right? WRONG!
There are important exceptions to the 3 year limitation period, which Solicitors should be aware of, but which are often overlooked or misunderstood.
If someone is injured in the air, or at sea, then the period is only 2 years.
If your accident happens abroad then the relevant limitation period is that which applies to the country where the accident happens.
As a general rule, for children, the limitation period does not begin to run until the child’s 18th birthday.
For Solicitors acting for Claimants there are simple steps that can be taken to protect yourself against the pitfalls of missing a limitation period. Gordon Exall helpfully provides the “essential limitation checklist” in his blog 26 May 2014, where he highlights practical, and obvious steps that you can take to avoid negligence claims. He sets out points such as ensuring that the limitation date is marked on the front of the file and that relevant dates are entered into diaries and case management systems with reminders in advance.
Obviously some firms are not implementing these steps, and for one reason or another solicitors are still missing important deadlines. If you think that your Solicitor may have missed limitation, or has missed another deadline which means you can no longer pursue your claim then give me a call. I will be happy to discuss it with you further and see if there may be something I can do to help.
John here again. This is my first blog of 2016, so Happy New Year.
So what does the year hold in store for blameless accident and injury victims and the lawyers who help them to win fair and just compensation?
Well, I am afraid it is a bleak picture because there are attacks coming from all sides and it is all bad news for victims. My best advice is don’t get injured or have an accident!
Speaking more seriously, it is difficult not to get a little political about the ill thought through and shameless changes that are coming in, wave after wave. Without boring you with minute details, it is safe to say that the changes are ALL in favour of big businesses – particularly the ginormous global insurance companies – and against the “little guy” – folks who blamelessly find themselves injured and perhaps unable to work.
The pace and ferocity of change has ramped up since the election of a Conservative Government.
The “noise” coming from Westminster is now all slurring about fraudulent claims, with pernicious suggestions or whiffs that everybody who brings a claim is “at it”.
This is clearly a consistent campaign and “line” being peddled by Government that mirrors precisely what the insurance industry like to tell us.
Predictably, the lawyers are bashed as fat cats and ambulance chasers too – a familiar, lazy and populist slant (history note – whilst I am not comparing him with David Cameron, Hitler hated “inconvenient” lawyers who stuck up for pesky things like the rights of individuals and upholding the law too, but, cleverly, he cultivated his own band of lawyers as well as using strong arm tactics).
The real fat cats are the multi billion pound insurance companies who love to take our premiums, but really don’t like it when we have the temerity to claim on the policy when something goes wrong. These same companies who wring their hands as premiums go up for insurance and blame feckless “have a go claimants”, still find billions to pay in dividends to their shareholders. They are laughing at how well this is working for them and cannot quite believe the degree to which the Government have swallowed this hook, line and sinker.
But what has emerged is a dirty not-so-little secret that is growing. It turns out that the Conservatives as a party and many individuals in it, have received many millions of pounds from the insurance industry. The Guardian has found what it calls a “golden circle of Tory backers” in the insurance industry. Read article. It makes uncomfortable reading for the law making Government.
These enormous insurance companies can spend huge sums on lobbying and warped, self-serving “opinion forming”. If you say “fraudulent claim” or “compensation culture” often enough and loud enough, some mud will stick. All just “noise”, not facts.
I’ll finish for today with this.
I sometimes meet people who say, loftily, when they learn what I do,
“I don’t believe in compensation claims, it’s distasteful and shabby”.
I then ask them what they do and I get a response like,
“I am an accountant/teacher/bus driver/insurance executive (ha ha)”.
I then say,
“How long do you get sick pay for under your employment contract if you are ill or injured?”
They reply something like,
“3 or 6 months”.
“So, if somebody injures you badly and it is their fault and you can’t work for 2 years or more, what will you do when you can’t pay your bills and your house is re-possessed? Do you “believe” in compensation claims then?”
The answer is usually an awkward,
“Ah…, but that’s different”.
They then usually wander off!
Forgive the soap box blog – it’s my first of the year, so allow me the indulgence. I believe in my clients and I hope they believe in me too!
Hi there. My name is Rebecca Wood and this is my first ever blog on here.
I really enjoy my work, and, clichéd as it sounds, I like helping people.
For me, the most important thing about being a Personal Injury Solicitor is good client care; establishing a good working relationship with your clients, building trust and making sure you go that extra mile to get the right result for your clients. Working here at Ibbotson Brady is giving me the chance to do just that. As the website says, at Ibbotson Brady it’s all about the “personal touch.”
Making a claim for personal injury can be pretty daunting, particularly if you have never made a claim before. Do I need a Solicitor to help me? How do I choose the right Solicitor? What makes a good Personal Injury Solicitor? These are just some of the questions that spring to mind.
I could write an essay on the things that make a good (or indeed a bad) personal injury Solicitor, but I won’t. Instead, I will offer a few pointers about choosing the right personal injury Solicitor for you.
My advice to anyone thinking of making a claim would be to choose a local Solicitor; not some firm based 200+ miles away. The advantage of using a local firm is that you can always arrange a face to face meeting with your Solicitor, and if you are confused about any documents, forms or have any concerns about your claim, you can speak with them in person; not just over email or by telephone.
I would also say, pick someone who is experienced in personal injury claims; who understands what your concerns are and someone who genuinely wants to help get the best outcome for you.
One final pointer would be to ask around. If you have friends or family who have previously made accident compensation claims, then they will, dependent upon their experience of their Solicitor, be able to recommend someone who can help you. I think a personal recommendation is always better than just plucking a name out of the phone book, or carrying out a google search! Nothing pleases me more than when a client has recommended me to help their friends or family.
You will usually get a feel for whether or not you like a Solicitors’ firm when you first speak to them. If you call to see if they can help and you don’t get a good feel for a firm then you don’t have to use them. As a Claimant you have freedom of choice, so pick a personal injury solicitor that is right for you. One size does most definitely does not fit all!
I could go on and on, but I won’t bore you further…. I guess what I am trying to say in a roundabout way is that choosing the right solicitor to deal with your personal injury claim is important. Choose wisely.
I’m delighted to announce that specialist injury claims solicitor Rebecca Wood will be joining us at Ibbotson Brady Solicitors in Leeds on the 1st September 2015.
Rebecca is actually re-joining us, having first started with us in 2003 as a trainee solicitor. She qualified as a solicitor in 2005 and remained with us until 2008. We have always stayed in touch and now seems the perfect time for her to come back.
Rebecca is a Grade A litigator and is vastly experienced in personal injury claim litigation. She is a person who really cares about her clients and fights very hard and with compassion to achieve a great outcome for them. She is a terrific addition to our team and a great person to have around.
As a firm we are now into our 15th year and we continue to go from strength to strength. I know that a huge part of our success is down to our wonderful clients and staff. Rebecca understands that we have chosen never to go down the path of running a conveyor belt factory style firm. Every single one of our clients is an important individual to us. Those high service values suit us and our clients.
I’m really looking forward to Rebecca starting with us for a second time.
No more “Free iPad if you claim” deals and a tough new anti-fraud provision comes in for injury claims
John Ibbotson of Ibbotson Brady Solicitors comments:
On the 12th of February 2015, the MOJ (Ministry of Justice) announced that new measures had been passed into law in the Criminal Justice and Courts Act 2015 which aims to further tackle the perceived, and in some cases real, problem of insurance fraud. They are expected to come into force in April 2015, just before the election.
The new law contains sections aimed at dealing with sharp marketing practices and also affects court proceedings.
The Act bans the offering of inducements like iPads, laptops or cash up front to potential new injury claim clients coaxing them to bring a claim.
It also says that the courts will throw out personal injury cases completely where the claimant has been found to be “fundamentally dishonest”, unless the court thinks that doing so would cause “substantial injustice”. Rather worryingly, neither of these terms is defined by the new law.
In reality, the prohibition of “inducements” to bring a claim, which has long been called for by Justice Secretary Chris Grayling, has been welcomed by large parts of the wider legal community, me included. It always struck me as a grubby practice, usually adopted by law firms run on a “factory farm” basis, rather than by good lawyers with a personal touch and a genuine concern for their clients.
Unfortunately, I am much more worried by the introduction of the “fundamental dishonesty” test. It has generally been met with deep and genuine concern by decent and honest claimants and their lawyers, contrasting with the joy felt in defendant orientated quarters.
Kerry Underwood, a very well known and respected solicitor in the field, of Underwoods Solicitors, has expressed strong and clear views on it and how it could affect personal injury claims massively.
Kerry explains in his blog, kerryunderwood.wordpress.com, that the new law requires a court to dismiss the whole of an injury compensation claim if it is satisfied, merely “on the balance of probabilities” and not even “beyond reasonable doubt”, that the claimant has been fundamentally dishonest in relation to any part of the claim.
He says, “Thus fundamental dishonesty in relation to, for example, an aspect of future special damages (which are financial losses) means that the whole case, including the general damages claim (which are damages for the pain and suffering of the injuries), is lost. Likewise an exaggeration of symptoms, if that is held to be fundamental dishonesty, means that a client loses the whole claim including the claim for his written-off vehicle caused by the other party’s negligence”.
I very much share his concerns. It does not feel well thought through and fair; in fact it appears very likely to become disproportionately draconian and some poor claimants are going to suffer. Blatant frauds and blatant exaggerations in claims are already being caught out and punished. This feels like a sledgehammer to crack a nut.
Kerry adds, “None of us know how these draconian and unprecedented provisions will be applied”.
He then goes on to imagine what might happen in cases under the new law, as follows.
“A claim is brought. Liability is admitted. Past specials (which are financial losses) are agreed and paid at £40,000. Generals (the pain and suffering damages) are agreed and paid at £30,000. There is a dispute about future loss of earnings and that issue goes to court and the judge finds that the claimant had an unrealistic view of his future career prospects and has been fundamentally dishonest in his future loss of earnings claim.
Bang goes the whole award and the claimant must refund the £70,000. Admissions in personal injury cases are now meaningless.
Satellite litigation will not begin to describe what will happen; it will be constellation litigation”.
Quite. Very worrying indeed. In reality, I think that it is likely that clarity will only be achieved once the provisions have been tested in court. Some argue that the term “substantial injustice” was deliberately put in place in order to give the courts some flexibility and to ensure that the new regulations are applied fairly. In other words, if the judge has a bit of sympathy overall with the claimant then he or she might use this “get out” provision to avoid having to dismiss the whole claim.
I predict that the definitions of “fundamental dishonesty” and “substantial injustice” are going to be played out in the courts for years to come. I very much fear that some poor, genuine claimants are going to suffer as guinea pigs for this new law.
In summary, I very much like the inducement ban, but I am deeply, deeply worried by the whole “fundamental dishonesty” debacle. I score the government 5/10. Must do better.
If you think your solicitor might have made a mistake that has caused you a loss, it can be a daunting prospect considering bringing a claim against them and you might have no obvious way of funding a claim.
So, is it possible to bring a claim in these circumstances on a “no win, no fee” basis?
I certainly consider offering clients this basis for funding such a claim here at Ibbotson Brady Solicitors Limited. However, these claims are rarely straightforward.
First of all, I have to establish whether there are any other means of funding the case, such as through trade union funding, legal expenses insurance, privately paying or third party funding (in other words, somebody paying the legal fees for you).
Next, I have to establish whether there are sufficient merits to warrant considering acting on a “no win, no fee” basis. It is often appropriate to agree to take limited steps at the beginning, to enable the merits of the claim to be considered further, for example, by agreeing to proceed only to the obtaining and consideration of the original solicitors’ file on a “no win, no fee” basis. At that point I can take stock, see if the case looks strong and consider future funding.
These cases are notoriously difficult to win. They are always against sophisticated and tenacious professional opponents, with similarly sophisticated and tenacious insurers. Professional reputations are at stake and so they are almost always hefty “multi-track claims” (big and complex) and often need court proceedings. They demand a lot of time and attention and, if done correctly, ought to be conducted by a Grade A lawyer (very senior).
I am a Grade A lawyer.
It is a bald fact that bringing and, hopefully, succeeding with a professional negligence claim is never as good as the original solicitors having got things right in the first place. If the claim is a money claim, then even in successful claims the “return” will not usually be as good as having won in the first place would have been. My clients have to manage their expectations accordingly.
Bearing all of the above points in mind, the factors that I tell my clients that they ought to consider before signing up to a “no win, no fee” agreement to bring a professional negligence claim include:
- If the claim fails you will not have to pay me
- I will consider on a case by case basis promising that if you win your claim you will keep at least a certain percentage of your damages, so that it is worthwhile you proceeding
- I will discuss with you at all appropriate stages and advise upon whether any suitable insurance is needed in your claim, often referred to as “after the event insurance” or ATE, to protect you from having to pay your opponent’s costs. In my experience of professional negligence claims, these policies are almost always bespoke and usually no meaningful proposal can even be submitted for such insurance until all of the facts are known. Policies are usually quite expensive due to the nature of these claims, but particular consideration ought to be given to this, especially before any proceedings are issued.
- In our agreements there is a 14 day cooling off period
This is only a very basic summary of the principles that I consider. Every professional negligence case is unique and there is no substitute for reading and considering the “conditional fee agreement” (“no win, no fee”) itself with me.
Ibbotson Brady Solicitors Ltd, Park House, Park Square West, Leeds, LS1 2PW
Telephone 0113 3663022
Pothole Claims Solicitor – John Ibbotson being interviewed for BBC documentary
Landmark Films are in Leeds at the moment making a BBC documentary about potholes in the city.
The producers telephoned John Ibbotson at Ibbotson Brady Solicitors Limited in Leeds to ask if he might contribute, being a local solicitor with great experience of accidents and injuries caused by people walking, running or cycling into or over potholes. Having interviewed several people at the Highway Authority, Leeds City Council, they want to apply some balance by talking to a lawyer who has seen the potential consequences of nasty accidents caused by potholes.
John will be interviewed on Thursday, the 20th November 2014 at the site of an accident in South Leeds where one of his clients was very badly injured when he fell off his bicycle after inadvertently riding into a pothole.
The gentleman in question suffered very nasty fractures and was still having surgery and treatment two and a half years after the accident. The pothole in question was very nasty and long-standing.
We have a whole page of our website about these claims here. They are tricky to establish, but can be valuable if serious injuries have been suffered.
John will do his best to give the balanced views of a lawyer helping people who have been hurt by potholes. As a local council tax payer he understands and appreciates that the Council must defend itself, where it can. However, when they fail in their duties and responsibilities as the local Highway Authority, then they ought to expect claims to be made when someone is hurt.
There is a difficult balance for Local Authorities to apply between maintaining, inspecting and repairing the roads and pavements and paying out claims for where they have failed to maintain, inspect or repair them. In an ideal world, the Council would also have sufficient resources to keep roads and pavements in an excellent state, but in the real world nobody can expect every road and pavement to be like a billiard table. In fact, even the law does not expect that.
We will report again after John has been interviewed with an update and then we will have to wait and see if he makes the “final cut”!
If you have a question or query about any kind of potential accident claim, give us a call on 0113 366 3022 or contact us on this form for free.
John Ibbotson and Lorraine Brady set up Ibbotson Brady Solicitors in 2001. In recent times the practice incorporated and John became a director whilst Lorraine remained purely as a senior and highly respected solicitor and not as a business owner. At the same time, Katherine Ibbotson came on board.
Katherine joined Ibbotson Brady Solicitors Limited as a Director in September 2013 in a part time and purely strategic role.
Katherine has no responsibilities for any client work, but brings her vast commercial experience to the business planning and direction.
Oxford graduate Katherine qualified as a solicitor in 1994, training at blue chip city firm, Macfarlanes. She then worked for legal giants Eversheds, Addleshaw Booth and Co and then Eversheds again, becoming a partner there. She worked on commercial projects and procurement.
Katherine then worked at the Department of Health Private Finance Unit as a procurement specialist before becoming Head of Legal, NHS England in 2014.
John and Lorraine work in the field of litigation, predominantly working on cases concerning personal injury, clinical negligence and professional negligence, but covering other areas such as freedom of information and data protection too.
As an established and trusted firm, we have strong links with other high quality firms and reciprocal arrangements, so that more or less whatever legal problems or issues you have we can either help you ourselves, or we can recommend someone who we trust to help.
Call us on 0113 3663 022 if you have anything we can help you with.
What can I claim for in an injury claim if I have been hurt?
John here again to answer this question, one that I am often asked.
Put very simply, there are two types of compensation or “damages” that you can claim for if you have been hurt in an accident. The first kind of compensation relates to the pain and suffering caused and the second kind of compensation relates to financial losses suffered as a result of the accident.
Before you can even think about the value of a claim, you actually have to have a good claim in the first place. We have a fault-based legal system. The legal term for fault is liability. Unless somebody is liable for your accident and the injuries and losses caused in it, it’s unlikely that you have a claim. There are some unusual circumstances where you might still have a claim. I would suggest that you simply ring us if you have any questions or any doubts about that.
So, assuming that you have a good claim, how do we value the compensation that you ought to receive for your pain and suffering?
The damages for “pain, suffering and loss of amenity” are usually referred to as General Damages. For these General Damages to be assessed, expert medical evidence has to be obtained as a part of the claim. Put very simply, the more serious the injury or injuries that you have suffered, the higher the value for your general damages is likely to be.
The level of general damages tends to creep up over time, with inflation. However, general damages are not particularly high in this country, in comparison to some other jurisdictions. To give you a couple of examples, as at the date of this blog, you can expect to receive somewhere between £77,000 and £111,000 for the above knee amputation of one leg. For a less serious injury, such as a relatively uncomplicated fracture of the forearm, you could expect to receive somewhere between £4900 and £15,500.
The picture becomes complicated if you make a less than complete recovery. There is also the fact that no two people are the same. some people recover more quickly than others and factors such as age and fitness can come into it. Expert medical opinion is crucial to the valuation of this part of the claim.
The reference to “loss of amenity” relates to the way in which your life might have been affected by the accident and the injury suffered. For instance, you might be a very keen artist or sportsperson and the injuries might stop you from following those pursuits. The law recognises that you have suffered more than just normal pain and suffering. You have also lost the potential to enjoy something that you loved doing as well.
Turning to the financial losses suffered as a result of the accident, these tend to be more straightforward and obvious, but that is not always the case.
The basic principle is that you can claim for those losses and expenses that you’ve incurred solely and exclusively as a result of the accident. The idea is that the compensation ought to put you back in the position as if the accident had never happened. For instance, if you are unable to work for six months and you are not paid for that entire period, then you ought to be able to claim for the exact net loss of earnings suffered throughout plus a little interest for the fact that there was a delay in receiving it.
I always say to my clients that if you are in any doubt as to whether a particular financial loss might or might not be recoverable in your claim, then keep proof of it and tell me about it as soon as possible. I will be able to advise you whether or not is recoverable. It is better to assume that it is recoverable, rather than to lose the chance of ever claiming for it.
Sometimes you can end up with cases where the damages for pain and suffering and for financial losses overlap. For instance, if a professional footballer broke his leg and could never play again, it is likely that he would have a hefty claim for the pain and suffering damages, a further claim for loss of amenity because he can no longer do something he loves and a large loss of earnings claim.
I’m sure that you start to get the picture!
For now, my simple advice is that if you are in any doubt over whether you have a claim for compensation, or whether you can claim for anything in particular, give me or Lorraine a call for free, or click on the case evaluation button below. We would be happy to talk to you and give you the benefit of our advice.
That’s all for now,