Nicola Laver LLB
NCTJ-qualified journalist and ex-solicitor
Welcome to the claims.co.uk online legal dictionary. You can use the search box below to find the definitions of certain legal terms, or use the simple alphabetised menu to find what you’re looking for.
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Accident records must be kept by all employers to enable accidents to employees, contractors and visitors to be formally recorded. When an accident happens, the date and time should be recorded, along with the name and role (if relevant) of the victim, the nature of the injuries sustained and how it happened.
The formal record will amount to vital evidence in any subsequent personal injury claim against the employer/organisation.
An acknowledgement of service is a document that the defendant will complete and return to the court after receiving the claim form from the claimant. An acknowledgement of service is appropriate where the defendant intends to defend some or all of the claim against it. It should be sent to the court within 14 days of receiving the claim form, however, it is not obligatory to send an acknowledgement of service.
After the Event (ATE) insurance is typically taken out at the start of a no win no fee case to protect the financial risk of losing the case. If you lose your claim (or you unsuccessfully defend a claim), you will have to pay some or all of the winner’s legal fees and costs. ATE insurance covers this risk.
If you lose your case but you think you should have won, you can appeal to a higher court. However, you can only appeal on a point of law. This means you can appeal if you think the trial judge was wrong, or because it was unjust - but not if you feel it just wasn’t fair.
If you want to appeal, a notice to appeal must be made within 21 days. The court will only grant permission to appeal if there is a genuine prospect of success, or there are some other compelling grounds for the appeal to be heard.
An assessment of damages hearing is a final hearing which is necessary where the defendant admits liability, but the quantum of damages or compensation cannot be agreed between the parties. Submissions will usually be presented by each party’s barrister. There may be evidence from experts and other witnesses.
Once the evidence has been presented, the judge will make a decision as to the appropriate compensation award. The judge will give reasons for deciding the claim is worth the amount ordered.
The Association of Personal Injury Lawyers (APIL) is a ‘not for profit’ association made up specialist personal injury lawyers. It campaigns for the rights of injured people, for better access to justice, and changes in the law to improve the services for injured people. Instructing an APIL accredited personal injury solicitor can ensure you have specialist advice and representation for your claim.
A barrister - also known as 'counsel' – is a lawyer who is a specially trained advocate and can represent you in court to present your case on your behalf. Most solicitors (except Solicitor Advocates) are not qualified to advocate in open court in personal injury cases. Instead, they instruct a specialist personal injury barrister to put forward your case, providing them with all the information and expert evidence required to put the strongest possible case to the court on your behalf.
As a specialist, your barrister can also provide their 'Opinion' on the merits of your case. This can help you and your solicitor decide how to best progress your claim (or defence).
A breach of statutory duty is the failure of a person or organisation to perform, or comply with, a duty imposed on them by statute. For example, employers are under specific statutory health and safety duties for the protection of staff and others on their premises. If they breach their health and safety duties and someone is injured as a result, they will be liable for the breach.
In common law negligence, there must be a duty of care towards the claimant which may not necessarily be imposed by statute. However, in some cases there can be both common law negligence and breach of statutory duty.
The burden of proof in personal injury claims means the burden of proving the other party was responsible for the facts it says caused the injuries. Usually, this means the burden of proof is on the claimant to prove the defendant was negligent and caused the personal injuries for which compensation is claimed.
However, if the defendant counterclaims against the claimant, it is for the defendant to prove its case. Similarly, if the defendant files a defence that is more than a mere denial, the burden of proof is on the defendant to prove the facts set out in its defence.
The civil courts have a vital role in effective case management of personal injury claims. This means they must ensure the case proceeds efficiently and in strict accordance with the Civil Procedure Rules (CPR).
The courts’ overriding objective under the CPR is to deal with cases justly by, for instance, ensuring the parties are on an equal footing, that cases are dealt with expeditiously and fairly, and that there is appropriate allocation of court resources. The courts do this by exercising their powers to manage, direct and control how proceedings are to progress.
A civil restraint order is an order made against a party who has issued legal proceeding or made applications which are without any merit. Its purpose is to restrain the party from making any further applications in the proceedings without the Court’s permission. One of the parties can make an application to court for a civil restraint order against the other party.
Where the court dismisses or strikes out a party’s statement of case or application which is entirely without merit, the court order must state that fact – and must also consider whether to make a civil restraint order.
The claimant is the person bringing the personal injury claim against the defendant. So, for example, if you have been injured at work or in a road accident and you are claiming compensation from an insurance company; or you are suffering a disease as a result of exposure to chemicals at work and claiming against your employer – you are the claimant.
Clinical negligence is the breach by a doctor, dentist or other health professional, of their duty of care to their patient. Clinical negligence arises where the doctor (or other professional) fails to take reasonable care that would be expected of a competent doctor of their experience in those circumstances.
Clinical negligence can arise in many scenarios, including during a surgical procedure that was not properly carried out; GP errors; a failure by a doctor to diagnose an illness; being prescribed or given the wrong medication; aggressive or needless dental treatment; and failure to warn of common side effects of a treatment plan.
The Compensation Recovery Unit (CRU) is a government body, with responsibility for recovering social security benefits paid to the victims of negligence who win compensation. The CRU can recover the amount of benefits paid from the relevant insurer, hospital costs following emergency treatment, and costs incurred by Ambulance Trusts.
Conditional Fee Agreements (CFAs) are common in personal injury and clinical negligence claims, and are often known as no win no fee. A CFA is usually underpinned by an insurance policy called After the Event (ATE) insurance. Under the terms of a CFA, if you win your claim you will have to pay a percentage of the compensation you receive to your solicitors, as well as the ATE premium. The CFA will state the percentage due, but this is capped at 25%. The losing party will be responsible for your legal fees.
If you lose your case, you will not normally have to pay anything except for expenses incurred, for instance, expert medical reports and court fees. These will be covered by the ATE insurance policy.
There is contributory negligence where the claimant is partially to blame for the incident or circumstances which gave rise to the personal injuries for which compensation is claimed. It is very common for defendants to allege contributory negligence on the claimant’s part to reduce their financial liability.
For example, there will be contributory negligence where a cyclist who was not wearing a helmet when injured in a car accident; or a passenger injured in road accident who was not wearing a seatbelt. In these situations, any compensation awarded to the claimant will be reduced proportionately.
Costs budgeting refers to the financial management of proceedings in the ‘multi track’ as the case progresses. Costs budgeting requires the parties to prepare a costs budget estimate for each stage in the litigation.
They must take into account the specific issues in the case, the necessary procedural steps and the time each stage of litigation is likely to take, and consider which lawyers will be working on the case, and their hourly rates. The parties must file and exchange their costs budgets at a certain stage in proceedings.
Where the court makes an interim costs in any event order, the party in whose favour that order is made will recover their costs of the application or hearing from the other side – even if they lose.
A costs in the application (or case) order in a party’s favour means that party is entitled to their costs of that application. However, if the other party is awarded costs at the end of the case, the party in whose favour the final costs order is made will not have to pay the costs of the other party of that application in which the costs in the application order was made.
A costs order is an order of the court that a party must pay its opponent’s legal costs. The usual rule on costs is: ‘costs follow the event’. This means the losing party pays the winning party’s costs. However, the court has discretion to make a costs order against another party, taking into account factors including the conduct of the parties, whether they have unreasonably refused mediation, and not following the Personal Injury Protocol.
Costs reserved is where the court postpones its decision as to what costs order to make until the end of a hearing or trial. However, if no costs order is later made by the court – it will become an order for ‘costs in the case’ (costs in the application).
Costs thrown away are awarded against a blameworthy party whose conduct has caused the other party to ‘waste’ costs unnecessarily. For example, a judgment of the court or a court order can be set aside. In those circumstances, the party who is awarded costs in that hearing is entitled to the costs incurred as a result.
Those costs cover, eg. the preparation of, and attendance at any hearing relating to that judgment or order, as well as the costs incurred for any steps taken to enforce a judgment or order that has since been set aside.
A counterclaim is a claim made against the claimant in response to the claimant’s own claim. A defendant may file a counterclaim in addition to a defence. The counterclaim must include particulars detailing the counterclaim.
In a claim following a road traffic incident, for instance, the defendant may defend the claim denying that they were at fault. The defendant might also counterclaim against the claimant on the basis that it was the claimant who caused the accident, and is liable for the defendant’s injuries. The claimant must serve a defence to any counterclaim within 14 days and, if it does not, the defendant can apply for summary judgment against the claimant.
The Court of Protection is a specialist court which makes decisions on financial and welfare matters for people who lack mental capacity. The Court of Protection plays an important role in many personal injury cases, particularly by appointing Deputies to manage the property and financial affairs of individuals who are mentally incapacitated.
The Criminal Injuries Compensation Authority (CICA) compensates operates a scheme to compensate victims of crime who have suffered personal injuries. This is a government backed scheme enabling victims to receive damages for violent crime – even where the offender has not been identified or apprehended. However, the CICA will only consider claims if the incident was reported to the police.
Compensation is based on a tariff system, from £1,000 to a maximum amount available of £500,000. Compensation is not available for minor injuries, or for injuries caused in road accidents.
The financial compensation you receive following a successful personal injury claim is commonly known as damages. Damages are calculated in such a way as to properly compensate you for your physical injuries and suffering, and any losses.
There are two categories of damages: general damages compensating you for your pain and suffering, and loss of amenity; and special damages to cover your actual financial losses (for example, medical expenses and travel costs to hospital).
A defective product in a personal injury claim is a faulty product causing injuries to the claimant. These claims are known as ‘product liability’ claims. Defective products include a wide range of products and goods, as well as food and drink and other less tangible items.
Examples of defective products include items manufactured with a structural fault; food and drink that is contaminated; electrical items that overheat and explode; and items causing a severe allergic reaction. Even a lack of appropriate instructions for use, or warning notices, can render a product defective for the purposes of a compensation claim.
A defence is where the defendant formally denies or resists the claim made against them. There are various types of defence to a claim, including:
It is for the defendant to prove what it claims in its defence - unless it is a simple denial, in which case the claimant must prove its claim. So if the defendant claims that a third party was responsible for your injuries, the burden of proof is on the defendant.
The defendant is the person or organisation against whom the claimant brings their personal injury claim. Depending on the nature of the injuries and how they happened, the defendant may be an individual or, for instance, an insurance company, a local authority or limited company.
A Deputy is someone appointed by the Court of Protection to manage the finances and welfare of an individual who lacks mental capacity to do so themselves, such as the victim of a serious accident. A Deputy can be an individual (such as a family member) or a professional (such as a solicitor).
Application for Deputyship is made to the Court of Protection under the Mental Capacity Act 2005. Once appointed, a Deputy is effectively an agent of the Court of Protection and they must comply with the Mental Capacity Act in performing their role.
Court directions in a civil claim are, essentially, the court’s stated timetable of the claim and instructions as to how the claim is to progress. The court give its directions only after proceedings have been issued and a defence filed.
Directions are necessary to enable the parties and the court to understand the issues, to be clear on which aspects of the claim are in dispute, what arrangements should be made for the hearing, and the timetable to work to. The parties must comply with the directions of the court.
Disbursements are specific payments made on your behalf by your lawyers as and when they arise. These costs are separate to your solicitors’ legal fees. Examples of disbursements that would typically be incurred include court fees, the costs of medical examinations and expert reports, some administrative fees and counsel’s fees.
Whether or not you recover these at the end of the case depends on who wins, and what agreement is in place with your solicitor. The usual rule is that the losing party is responsible for reimbursing the winner’s costs and disbursements.
Disclosure is the handing over of all relevant documents and information by one party to the other so that both sides have all the information about the other’s arguments. Disclosure is a key stage in personal injury proceedings and enables the parties to understand each other’s position. It can also help the parties settle the claim before the litigation progresses.
Disclosure does not require everything to be disclosed to the other side. Documents and information protected by the legal privilege is protected from disclosure. The parties are required to prepare a list of documents that have to be disclosed.
Where an individual or organisation is expected to exercise reasonable care to protect others, they owe a legal duty of care to those individuals. A duty of care means a legal obligation and responsibility to take reasonable steps to protect the safety and wellbeing of others.
For example, a duty of care is owed by employers to their staff; by supermarkets to shoppers in their stores; by doctors to their patients; by restaurants to their customers; by schools to their pupils – and by manufacturers to products users. If no duty of care exists, any negligence claim will fail.
In a compensation claim, the claimant is generally expected by the other side to mitigate their loss. This means they should keep their claim to a reasonable minimum. The purpose of compensation is to put the claimant back into their pre-accident position as far as possible.
For example, a claimant claiming travel expenses to get to hospital appointments cannot reasonably claim for return taxi fares, if they could easily drive or use public transport. Similarly, the cost of replacing a written-off vehicle or damaged clothing should not be unreasonable in view of the make or value of the previous vehicle or clothing.
Employers’ liability arises where an employer is held responsible for an accident in the workplace. Where an accident takes place at work, during the employee’s usual course of employment, any ensuing personal injury claim will be against the employer. In practice, the claim will be against the employer’s insurance company under their employers’ liability insurance cover.
An expert report is a report written by an expert witness which will be used as expert evidence in proceedings. In personal injury cases, there will invariably be an expert report written by a doctor or other health professional. The report will typically be compiled following a medical examination of the claimant, and based on their medical records.
The expert report must be in a format set out by the Civil Procedure Rules (CPR) and fulfil further requirements under the CPR. For example, it must be verified by a statement of truth.
The final hearing in personal injury proceedings is the main hearing which will conclude the matter. At the final hearing, the court will hear the evidence and decide on ‘quantum’, liability – or both. Where liability is not admitted, the final hearing will effectively be a full trial, with witnesses for both parties giving their evidence. The witnesses and the parties will be cross examined before the judge assesses the evidence, and reaches a final decision on the issues.
A final hearing will not be required if the claim is settled beforehand.
Foreseeable harm means the harm that a reasonable person would have anticipated being caused by doing - or failing to do - something. It does not require a ‘crystal ball’ test such that if negligence causes harm, compensation is always payable no matter how ‘remote’ the potential for harm. Instead, the victim needs to prove that the harm suffered was reasonably foreseeable to succeed in a personal injury claim.
The appropriate test is objective, ie. the harm must be reasonably foreseen for the negligent party to be held liable. So, for example, if you run a red traffic light, it’s reasonably foreseeable that an accident and serious injuries could result. However, if a witness to the accident suffers psychological harm as a direct result – that harm would be too remote to have been reasonably foreseeable.
Any compensation you receive for pain and injuries, suffering and ‘loss of amenity’ is known as general damages. It covers ‘non-pecuniary’ losses (they do not have a cost or price tag) and there is no fixed figure for injuries. Instead, general damages are calculated based on a number of factors including the severity of your injuries, the length of recovery, your age and life expectancy - and formal Guidelines.
These Guidelines are published by the Judicial College. They set out a range of acceptable levels of general damages for specific injuries.
Heads of claim (or heads of loss) refers to the different types or categories of damage a party has sustained. The different heads of a personal injury claim include pain and suffering and loss of amenity, psychological injury, loss of wages or salary, damage to clothing or property, loss of prospects, loss of pension, rehabilitation costs, and ability to undertake hobbies, housework, etc.
Some cases may have just one head of claim, while others may have many. Heads of claim are important because the monetary value of each will need to be assessed separately.
Inspection is a key part of the discovery process and refers to when the parties exchange their documents for inspection by the other side. Sometimes, the court will also order specific inspection requiring a party to permit inspection of the document/s referred to.
If a party fails to disclose a document for inspection, they may be prevented from relying on it (unless the court allows it). They can also be heavily penalised by the court for their failure to disclose.
An interim costs order is any order made by the court at various stages of the proceedings in relation to who is responsible for legal costs. There are different types of costs order including: no costs order, wasted costs order, non-party costs order, costs in the application (or case), costs in any event, and costs thrown away. These vary depending on who the judge decides must bear the costs, and why.
An interim hearing is any hearing that takes place during the course of the proceedings, but before the final hearing. For example, there may be a hearing at which the court will assess case management issues and make ‘directions’ as to how the case will progress, and what the parties must do by a certain date.
Interim hearings are not always needed; however, in complex or high value cases, there can be a number of interim hearings.
An interim payment is an upfront payment made to a claimant who needs immediate financial help. The cash may be needed to access treatment, to finance the costs of rehabilitation, etc, in serious cases. Interim payments can be made where the defendant admits fault.
Compensation claims can take years to come to a conclusion, so interim payments can be vital in many cases. They can be made voluntarily by the insurer (if there is one), or by a court order. Any interim payments made are deducted from the final settlement or compensation award.
Legal aid is public funding from the government which is available for a narrow range of claimants to enable them to fund a claim. Unfortunately, with the exception of children who suffer birth injuries as a result of medical negligence, no legal aid is available for personal injury claimants.
Liability means legal responsibility - being answerable in law. In a personal injury claim, you will be seeking to prove liability for negligence on the part of the defendant. If you can prove the defendant was negligent, resulting in your injuries, you have proved their liability and they must, therefore, make amends in the form of paying financial compensation.
Where a claim is made by a minor, the claimant will have a litigation friend who brings the proceedings on their behalf. The claimant’s litigation friend is typically a parent, carer or guardian. If, however, the parent or guardian caused the accident, it will not be appropriate for them to be their litigation friend. In such cases, another family member, friend, or a professional may act as litigation friend.
Usually, the individual will apply to court to be appointed the litigation friend. The court will then assess their suitability. Once appointed, the litigation friend must act in the minor’s best interests and comply with various duties.
Loss of amenity means the longer lasting effects of your injuries on your quality of life, including your family and private life, social life and ability to undertake hobbies, your sex life, ability to work or study. Loss of amenity is not easily quantifiable in terms of monetary value, and is therefore compensated within general damages in a compensation claim.
Damages for loss of amenity is important for victims of personal injury because it shows that the law recognises the lasting limitations injuries can have on their ability to enjoy their life to the full.
Loss of earnings is one of the most common heads of claim in a personal injury claim. A claimant can claim for loss of earnings in respect of unpaid time off work during your recovery and rehabilitation. This could include loss of overtime and expected bonuses. You will have to provide proof of your earnings, overtime and bonuses previously received so that a fair and appropriate calculation can be made.
Future loss of earnings may also be claimed in more serious cases, in addition to past loss of earnings. This may reflect factors such as missed promotions and pay increases of which the claimant will be deprived as a direct result of the accident. Expert evidence will be necessary to substantiate the impact of the injuries on the claimant’s ability to work in future.
A claimant will almost always need to undergo a medical examination with an appropriate medical expert. This will be arranged by your lawyer, and the expert will have sight of your medical records and notes before the appointment.
The expert will discuss the accident and your injuries with you; ask how long you have taken to recover and how it has affected you, eg. if you have had time off work, or if it’s affected your day-to-day life. The expert will also examine you to enable him or her to write an expert medical report on which you can rely on in your claim.
An individual must have sufficient mental capacity in order to make decisions about their finances, property and welfare. Someone lacks capacity if they are unable to make a decision for themselves in relation to a particular matter “because of an impairment of, or a disturbance in the functioning of, the mind or brain” (the Mental Capacity Act 2005). If the individual does not understand the relevant information, cannot retain it, or use it to make a decision, or cannot communicate a decision – they lack capacity.
Unfortunately, in serious personal injury cases the victim may lose their mental capacity, either temporarily or permanently. In such cases, a Deputy can be appointed by the Court of Protection to make decisions for them.
The Ministry of Justice (MoJ) is an important government department responsible for the courts and prisons. Its responsibilities include ensuring justice is properly and efficiently served throughout the justice system, including improving access to justice. The MoJ is responsible for the administration of the courts - including the Civil Court Rules which govern civil matters such as compensation claims.
A minor is a child or teen under the age of 18 years. If they are injured, a minor has special protection by reason of their age and vulnerability; for instance, their claim will be pursued by an adult on their behalf; and the limitation period in which the claim must begin does not start to run until they reach 18 years.
The Motor Insurers' Bureau (MIB) is a government scheme enabling road traffic accident victims to claim compensation where a driver is untraceable or uninsured. The compensation a successful claimant receives is usually commensurate with the compensation they would have received if they were able to claim in the usual way (ie. against the driver’s insurer).
In addition to compensation for personal injury, the MIB also compensates for financial loss and property damage caused by the accident.
Negligence is the breach of a duty of care, either by failing to take action, or actively doing something that an ordinary, reasonable person would do in the same circumstances. It amounts to a failure that falls short of what a normal person would or would not do to protect individuals from foreseeable harm.
Negligence is a civil wrong for which the appropriate remedy for the victim of negligence in personal injury is financial damages.
A no costs order (or where the judge makes an order that is silent as to costs) means neither the claimant nor the defendant is entitled to have their legal costs paid by the other. If there is a no costs order made at the final hearing, neither party can recover the costs of the entire case. This means it is important to understand the potential costs implications for you at each stage of your case.
No win no fee refers to the way in which personal injury claims are commonly financed today in the absence of legal aid in the majority of cases. No win no fee describes the client/lawyer relationship under a Conditional Fee Agreement (CFA). These agreements mean that if you lose the case, you will not be liable for your legal fees – these will usually be covered by an insurance policy.
Even if a case is handled on a no win no fee basis, other costs could be payable upon solicitors request. Most customers will pay 25% (including VAT) of the compensation they are awarded to their law firm, although this may vary based on individual circumstances. Your solicitor may arrange for insurance to be in place for you to make sure your claim is risk free. Termination fees based on time spent may apply, or in situations such as: lack of cooperation or deliberately misleading our solicitors, or failing to go to any medical or expert examination, or court hearing.
A non-party (or third-party) costs order is an order of the court that costs must be paid by a third party who is not a party to the actual proceedings. The court can make a non-party costs order if it considers it just to do so, against a third party for whose financial benefit the whole or part of the claim was made.
A major factor is the nature and degree of the third party’s connection with the proceedings. There must be a sufficient connection for a non-party costs order to be made, and it must also be just to make such an order in the circumstances.
An out of court settlement is a settlement of a civil claim before the case reaches the final hearing. In reality, most personal injuries are settled out of court – partly because the Civil Procedure Rules (CPR) actively encourage the parties to negotiate a settlement to avoid litigation.
A settlement is typically negotiated by the parties’ solicitors. Negotiations can start at any time, even up to the time of the final hearing. Once a fair settlement has been reached, any formal proceedings will stop. However, in some cases, the court must formally approve the settlement, eg. in the case of a child claimant, and claimants lacking capacity.
Out-of-pocket expenses are sums of money that the claimant has personally spent on different costs as a direct result of the accident, for example, travel expenses to hospital, prescription charges, costs of replacing damaged clothing, carers’ costs, and items needed to help in recovery. A claimant will often claim out-of-pocket expenses as part of a compensation claim. Where possible, receipts will be needed to substantiate out-of-pocket expenses.
The Civil Procedural Rules governing personal injury claims encourage early settlement of claims by way of allowing ‘Part 36’ offers to settle (Part 36 is the relevant Rule). A Part 36 offer is a genuine offer by either party to settle the claim (or part of it), but without prejudicing the litigation if the offer is refused. It can be made at any time, even before formal proceedings have begun, and must comply with the rules.
A particular advantage of Part 36 offers relates to costs, because if a genuine offer is refused there could be costs consequences if the case goes to trial. For instance, if you refuse a genuine offer to settle your claim (say, £50,000), and you eventually win your claim, but the judgment is less advantageous (£40,000) than the Part 36 offer, you will be liable for some of the defendant’s legal costs and interest.
The defendant may make a partial admission by admitting an element of fault, but not that they were completely at fault. The defendant may allege someone else was also at fault, usually that the claimant themselves were also to blame (see contributory negligence). If this is accepted by the claimant, or the judge decides the defendant was only partially to blame, an appropriate reduction of any compensation award will be made.
So, for instance, a cyclist claims compensation for personal injuries following an accident in which he was hit by a car being carelessly driven. The cyclist was not wearing a crash helmet, and the car driver (the defendant) makes a partial admission. At the final hearing, the judge awards £80,000 in damages, but reduces them by 25% to reflect the claimant’s own negligence in failing to wear a helmet.
Personal injury is any injury, harm or illness that you have suffered or are suffering. It is extremely wide ranging, and can include psychological and emotional harm, even if there has been no physical injury. For the purposes of personal injury claims, personal injury can even include death.
Examples of personal injuries include cuts and grazes and broken bones; head injuries; food poisoning; deafness and cancers caused by the work environment; and psychological problems.
Receiving compensation or an insurance pay-out following personal injuries could mean you can no longer claim means tested state benefits, eg. Income Support or Jobseekers Allowance. However, if your compensation or insurance money is placed into a personal injury trust, you can ring fence your money, so that you can still claim benefits.
A personal injury trust must be set up within 52 weeks of receiving the money otherwise your money will not be protected. The trust will be administered by two or more trustees in accordance with a trust deed setting out when and how the money can be used. Your trustees will be responsible for dealing with the tax and other legal matters relating to the trust.
A precedent in law refers to an example or authority in case law which can be followed. For example, a judge may set a precedent by making a particular decision in the final ruling in relation to a specific issue that has not come before the courts before.
The primary victim in a claim for personal injury compensation is a claimant who:
A prognosis is the time period during which an injured individual is expected to make a full recovery; or as full a recovery as can be expected and how they will continue to be affected long-term. A prognosis is usually given by a medical expert for the purposes of a compensation claim.
A formal prognosis is important because a settlement may not be appropriate without one. Also, a prognosis may be needed so that a fair figure for compensation can be reached.
A compensation claim can be made for psychological injuries caused by negligence. Psychological injuries are injuries to the mind, such as post traumatic stress disorder, recognised psychological and mental illnesses, and neurological problems. Normal human reactions such as grief, anxiety and distress, will not be classed as psychological injuries for the purposes of compensation.
Claims for psychological injury are harder to prove, and need to be backed up by expert psychological or psychiatric reports.
Public liability arises when a member of the public suffers personal injury or damage to property, because of the actions or omissions of someone else on land or property. For example, if you walk down a street and trip over a raised paving slab and break your ankle, the local authority could be held responsible under public liability law.
A public liability claim is a civil claim, and the appropriate remedy is financial damages. For a successful public liability claim, you would have to show that the respondent (the owner or occupier of the land or property) breached a duty of care towards you, and this resulted in the harm or loss suffered.
Quantum simply means ‘value’. Quantum of damages in a personal injury case is the amount of compensation won by the claimant for their pain and injuries, and loss of amenity. The quantum – valuation – of a personal injury claim is not usually easily assessed. Specialist barristers are often instructed to give their expert opinion on how a claimant’s injuries should be valued.
The law sometimes requires something to be ‘reasonably foreseeable’ to uphold a compensation claim. The test is whether a reasonable person of ordinary fortitude in the claimant’s position would be able to predict or expect the outcome of their actions or omissions, such as personal injury or death.
Rehabilitation refers to the time an injured person needs in which to recover from their injuries or - in serious cases - to recover as much as they are physically and mentally able to. It also includes the various types of care, support and medical help the claimant needs during that time of rehab.
The rehabilitation element is an important part of many personal injury claims. The claimant may need substantial compensation to support extensive rehabilitation required. Without adequate compensation, they may not be able to access effective rehabilitation.
A secondary victim in a compensation claim for psychological injuries is a witness who is a passive and unwilling witness of injury caused to another individual, who suffers a psychological injury as a direct result of witnessing it. Typically, the secondary victim making a claim will have suffered, for example, extreme shock or PTSD. To succeed in a claim, secondary victim must prove that they:
Following a recent case, a secondary victim who witnessed a traumatic case of medical negligence may be able to secure compensation - Re (A Minor by her Mother and Litigation Friend) & Others v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824
Special damages compensate you for actual financial (‘pecuniary’) losses. Those losses can be wide ranging depending on the circumstances. Common heads of special damages include loss of earnings, medical expenses, the cost of travel, car hire or repairs, carers’ costs, and so on. Special damages would need to be quantified by way of receipts, invoices, pay slips, and other relevant documentation.
To be successful, the claimant must satisfy the court to the civil standard of proof that the accident or incident occurred as a result of the defendant's negligence, thereby causing the injuries. The civil standard is on ‘the balance of probabilities’. This means the facts asserted must be ‘more likely than not’ in order for the claim to succeed. This is a lower standard than the criminal standard of proof (‘beyond reasonable doubt’).
A defendant in a personal injury claim who files a defence that is more than a mere denial of the claim, eg. the defendant holds the claimant party responsible, must also prove its argument to the civil standard. Here, the standard of proof is ‘reversed’.
A statement of case is a catch all term for the parties’ various statements of fact setting out their case. Statements of case (formerly known as ‘pleadings’) include the claimant’s particulars of claim or a claim form, the defence, counterclaim, and reply to a defence. The parties rely on their statement of case in the litigation.
A statement of truth must accompany a costs budget as part of the parties’ costs budgeting responsibilities. The statement of truth must be signed by a senior lawyer on the case, and its purpose is to verify that the facts set out within the costs budget are true.
Statutory Sick Pay (SSP) are payments to a qualifying individual who is too ill to work for their employer. SSP is a statutory amount paid by the employer for up to 28 weeks at the current rate of £92.05 per week (as at 22 October 2018). To qualify, you must have been off sick for at least 4 days in a row.
Your employer can pay you more than the statutory amount under a sick pay scheme or occupational scheme if your employment terms provide for this. However, the statutory amount is a minimum.
Strict liability is a legal principle by which the defendant is liable to the victim for compensation, whether or not the defendant was negligent. In these cases, negligence does not have to be proved for the claim to succeed.
Examples of strict liability in personal injury claims include: keepers of dangerous animals are strictly liable for injuries caused by a dangerous animal; and manufacturers of defective products where the safety of the product was not what people were generally entitled to expect.
The court has the power to ‘strike out’ a party’s claim or defence (Civil Procedure Rules 3.4) either of its own volition, or on one party’s application. The court can only strike out a claim or defence where it can be shown that the allegations in the claim/defence have no prospect of success, or in the case of excessive delay.
The court can strike out the whole of a claim/defence, or part only. However, striking out is a last resort, and the court does not readily exercise its power to strike out without an appropriate alternative.
If you win your claim for compensation, you may have to pay a success fee (sometimes called an 'uplift'). This is an amount payable to your solicitors under a Conditional Fee Agreement (CFA). The success fee will be payable in addition to what would usually be payable for your solicitor’s legal fees and expenses if there was no CFA.
Success fees are deducted from the damages you receive. The amount you will pay will be set in the agreement you entered into at the start of the claim, but it must not exceed 25% of the compensation awarded.
Summary judgment is a judgment given by the court in favour of one party without a full trial. Summary judgment is typically given in circumstances where the other party has failed to file a defence, or where the claim has no reasonable prospect of success.
A claimant can apply to court for summary judgment, or the court can issue summary judgment of its own volition. Obtaining summary judgment will save a lot of money in costs because no trial will take place. However, an application for summary judgment needs to be considered carefully because if your application fails, you will be responsible for the other side’s costs.
Third party ‘capture’ refers to a growing trend for insurers to contact personal injury victims following road traffic accidents to offer a fast settlement of their claim without lawyers being involved. Whilst legal, this can be very risky for the victims because medical experts are unlikely to be involved, and a speedy settlement would be counter productive if the victim’s injuries or prognosis prove more serious than first thought.
Road traffic accident victims do not have to entertain any offer to settle their claim quickly through third party capture.
Vicarious liability arises when an employer is responsible in law for the actions or omissions of their employee/s. If, for example, a forklift driver is negligent in operating the forklift at work, and another employee is injured as a result, the employer will be held liable – and not the driver themselves.
For an employer to be vicariously liable, the individual responsible must be an employee and not an independent contractor, freelancer, or self-employed consultant. However, the employer will not be held liable if the employee was ‘on a frolic of his own’, eg. if, in the above example, the employee had driven the forklift vehicle out of the employer’s premises without permission, and an incident then occurred resulting in injury to someone else. Here, the forklift driver will be held personally responsible.
A wasted costs order is, effectively, a stiff financial penalty imposed by the court. The court may impose a wasted costs order on a party who does not comply with the directions of the court without good reason, or there is other evidence of professional misconduct.
A wasted costs order is usually made against the party’s lawyer - not the client itself. This is because the lawyer would invariably be responsible for the breach of directions or proper procedure which led to the order.
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If you win your case, your solicitor's success fee will be taken from the compensation you are awarded - up to a maximum of 25%. Your solicitor will discuss any fees before starting your case.
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