Understandably, these are two of the first questions our clients ask at the start of their claim.
FUNDING YOUR CASE
Conditional Fee Agreements (“No Win, No Fee”)
Nowadays, most personal injury claims are pursued under a Conditional Fee Agreement (CFA) with the benefit of an After-the-Event Insurance policy (ATE).
This funding method means that, if a client’s claim is unsuccessful, then, subject to the rare exception which I will mention later, they will pay nothing at all for legal fees or their Solicitor’s disbursements (costs payable to third parties such as medical reports and Court fees). The ATE insurance premium also does not become payable.
If the claim is successful, then under the terms of the CFA, a success fee will be deducted from the compensation that the client receives. Success fees account for the fact that, in taking on cases under CFAs, Solicitors risk being paid nothing at all for their work if a case loses. The amount of the fee will depend on the percentage of the success fee in the CFA itself and the amount of work performed by the Solicitor at the point when the claim is concluded. However, it will never be more than 25% of the amount of the compensation received and is often less.
If the claim includes an element of future loss (such as post-settlement wages, care or accommodation), that part of the client’s compensation is not included in the valuation for the purpose of calculating the success fee. For example, if a claim settled for £50,000 of which £30,000 relates to future losses, then the maximum amount the solicitor will deduct is 25% of £20,000, namely £5,000.
The client only pays the ATE insurance premium if their claim is successful. The amount of the premium varies depending on the value and complexity of the claim. In a Fast-Track case (valued up to £25k), the premium will cost a few hundred pounds, but it will be more in higher-value, complicated cases.
The success fee and ATE premium are deducted from the compensation the client receives at the end of their claim, rather than coming directly out of their pocket.
Legal Expenses Insurance (LEI)
Some clients have the benefit of Legal Expenses Insurance (LEI) so do not need to enter into a CFA. Commonly found as additions to motor and house insurance policies, LEI policies ensure that, subject to terms and conditions, policyholders will not have to pay a success fee or an insurance premium if they win their case and still pay nothing if their claim doesn’t succeed. We always advise clients to check for LEI before we enter into a CFA with them as many of us have such cover without realising.
Trade Union Membership
Some clients may be covered by Trade Union funding which is similar to LEI if they or a member of their family is a member of a Union which offers such a scheme. Trade Union funding may work as in the CFA model in some cases.
Contingency Fee Agreement
In rarer cases, such as Criminal Injury Claims or claims to the Motor Insurers’ Bureau where someone has been injured by an untraced driver, Solicitors may enter into Contingency Fee or Damages-Based Agreements with clients so they are only paid if the claim succeeds. In such cases, they receive a sum equivalent to a percentage of the compensation the client receives. Common figures for these types of agreements are 25%, 33% and 40%.
The Rare Exception
The exception to all of the above is very rare, apparently occurring in around 0.4% of cases. This scenario applies only when a Claimant is found to have been “fundamentally dishonest”. That means that the Court has ruled that they have lied or been fraudulent about a substantial issue in the case – examples include cases where Claimants have been proved to have been working after the accident when they stated that they were unemployed, have greatly exaggerated the effects of their injuries, have lied about how or where they were injured or were not injured at all.
In those cases, the Claimants are usually ordered to pay all their own legal fees and those of their opponent, irrespective of whether they have a CFA, LEI or other funding. Fortunately, these cases are much rarer than insurance companies and the press would have us believe.
HOW LONG WILL IT TAKE?
The short answer is that it depends.
No two claims are ever the same, but the main factors which affect the length of the process are as follows:
Is Liability Admitted?
Once a claim has been submitted to the Defendant (usually an insurer), their liability decision determines the length of time the claim will take. If a Defendant admits liability, this speeds up the process considerably. If, however, liability is denied, then you may expect the claim to last considerably longer, usually 12-24 months in most cases. This is because the Solicitor (and often a Barrister) will need to assess why the Defendant has denied liability and gather evidence to try to prove the case.
How Serious are the Injuries?
The time it takes for a client to reach their fullest possible recovery differs from person to person. Injured people should not generally settle their claim until they reach that point as it will be very difficult to accurately value the claim. Where a client has suffered multiple injuries, the claim will be more complex and may take a few years to conclude. However, if liability is admitted and the client has largely recovered from their injuries by the time they instruct us, then their claim could conclude in around 6 months.
Medical Evidence
In personal injury claims, it is usually essential to obtain medical evidence by obtaining a report from a suitable expert. Prior to this report, the Solicitor will need to obtain copies of the client’s medical records. This usually takes around 6 weeks, but in some cases, there can be significant delays. This is generally due to understaffing in the NHS. Particularly during the pandemic, some hospitals have struggled to meet deadlines for providing patients’ records.
Once medical records have been obtained and reviewed by the Solicitor, it is not unusual to have to wait between 6 and 12 weeks for an appointment with the medical expert. The medical expert will then prepare a report, which will need to be checked carefully by the Solicitor and the client. There may be further questions for the expert, or the expert may recommend further treatment or a report from another Specialist. This can add many weeks to the process.
Returning Documents
There are a number of forms which clients need to complete, sign and return before we are able to progress their claims. Dealing with these as soon as possible enables Solicitors to proceed quickly. Any delay in returning documents will of course mean that the claim takes longer to resolve.
Delays by the Defendant
Some insurance companies and local authorities can take weeks or months to reply to even the simplest correspondence. There are time limits imposed by protocols, but unfortunately these are sometimes ignored by defendants, thereby delaying matters.
Court Proceedings
If a Defendant refuses to reach a settlement, or the amount they offer is unreasonable, then it may be necessary to start Court proceedings. The matter will go to a Trial and a Judge will decide if the claim succeeds or not. If the claim is successful, the Judge will assess the value of the claim. The period from the start of Court proceedings to the final hearing in front of a Judge is usually between 12 and 18 months, although the claim may settle at any stage.
HERE TO HELP
If you or someone you know has been involved in an accident and would like to discuss it with us, please don’t hesitate to get in contact by calling 0114 218 4000 or emailing info@tayloremmet.co.uk. We discuss costs and timescales with our clients throughout their case to ensure that they are fully informed. If you have any queries, we will be happy to help.
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