If you’re thinking about making a compensation claim, you might be unsure exactly what the process involves. We know there’s a lot of complicated legal information out there – below, we take you through every step of your claim in simple terms, so you can understand what your solicitor will be doing on your behalf.
If you have any more questions about what’s involved, or if you’d like to find out whether you could make a claim, you can get in touch with a trained legal adviser for free advice on 0800 234 6438.
You have three years from the date you were injured (or became aware of your injury) to start your claim. The exceptions to this is if the claim is for a child, in which case the three-year ‘limitation period’ runs from their 18th birthday; or if the injured party is not mentally fit to start a claim, meaing the three-year limit starts when they regain their mental capacity.
If you still have plenty of time left to start your claim, it’ll probably go through what’s known as the ‘Claims Portal’. The aim of the Claims Portal is to deal with your claim as quickly and cost-efficiently as possible.
If the value of your claim is £25,000 or less, your solicitor will probably use the ‘Pre-Action Protocol for Personal Injuries’ through the Claims Portal. This is a procedure which is put in place to help you make your claim without going to court.
Some claims fall outside the Protocol – such as high value personal injury claims, or road traffic accident injury claims where you were partly at fault. If this applies to you, your solicitor will be able to run you through your options.
When you speak to your solicitor, they’ll ask you some questions so that they have all the relevant details of the accident that caused your injuries. They’ll then send a Claim Notification Form to the other party or their insurance company.
The Claim Notification Form gives formal notice of your claim, and the other side has to reply to it within 24 hours.
After the Notification of Claim, your solicitor will then send a detailed Letter of Claim to the defendant.
This will include the details of your injuries and how they happened. It will also set out your losses, including any financial expenses, so it’s important to give as much information as possible to your solicitor about the financial impact your injury has had.
The other party (or their insurer) has 21 days to acknowledge your Letter of Claim, and then they have three more months to investigate your claim. After that, they’ll either accept liability for your injuries – or deny responsibility.
The defendant’s response to the Letter of Claim is very important. They might admit liability, in which case they’re also admitting that you’ve suffered loss and damage. If they do admit responsibility, your solicitor has to wait for 21 days until they take your claim further – this gives time for both sides to negotiate the amount of compensation you’ll receive.
However, if the defendant refuses to admit liability, then they have to give their own detailed version of what they think happened. For example, an employer might argue they carried out thorough risk assessments so they’re not responsible for what happened to you.
If the negligent party fails to respond at all to the Letter of Claim, you can start formal proceedings.
If the defendant doesn’t admit or deny responsibility for your injuries, they have three months from the date of their first response to investigate your claim and decide whether or not to admit liability.
If they make the decision to deny liability, they must give detailed reasons why. This helps both the parties to nail the issues that are in dispute.
The Rehabilitation Code must be adhered to, and your solicitor will explain the issues to you if rehabilitation is relevant to your claim.
Most personal injury claims need expert medical evidence to support the claim, so you’ll probably be asked to see a medical specialist for a medical report.
Depending on your injuries, more than one medical expert might be needed. For example, if you broke your back, you might need an expert report by an orthopaedic specialist; and if you suffered from a head injury you may need to be checked over by a neurologist or neurosurgeon.
Your solicitor will arrange the medical examination on your behalf and will choose a date and time which suits you.
Before your medical examination, you’ll be asked to sign a consent form to give your permission for your medical notes and records to be released by your GP, hospital or clinic, and passed to the medical expert.
At the appointment, the expert will ask you some questions about your injuries, and they’ll examine you so that they can give their expert written opinion on your injuries, what caused them, how severe they are, the effects on your life, and the impact your injuries are likely to have in the future. The final report will be sent to your solicitor.
If anyone else saw your accident happen, make sure you’ve given their details to your solicitor – witness statements can be very important for your claim, and your solicitor will want to take a statement from any witnesses as early as possible.
If the other party accepts responsibility for your injury, your solicitor will then send any medical records, photographs and the expert medical report to the defendant’s solicitors (this is known as ‘Disclosure’). Any witness statements and details of past and future expenses will also be sent to the other side.
Your solicitor will start to negotiate with the other side so that you can receive all the compensation you’re owed. They’ll consult closely with you during this process. Any offer made will include General Damages to compensate you for your pain and suffering; and Special Damages to cover your financial losses.
Most personal injury claims are settled out of court, but if a settlement can’t be reached, it might be necessary to start formal court proceedings. If this happens, your solicitor will be on hand to guide you through the process.
If they decide to make a counter offer, they have to explain why they have offered a lower amount of compensation. After that, both sides then have another 20 days for further negotiations to take place. Once a settlement figure is reached, the other party will have to pay it within 10 days.
If a fair compensation figure can’t be reached, your solicitor and the defendant will try to resolve your case through ‘alternative dispute resolution’ (‘ADR’).
This might mean mediation with an impartial mediator; or arbitration – where an expert arbiter hears the evidence and gives an informed decision about your claim.
If no settlement can be reached, and ADR isn’t successful, you’ll need to start formal legal proceedings. Your claim will then leave the Protocol.
Nicola is a dual qualified journalist and former solicitor. She is a legal journalist, editor and author with more than 20 years’ experience writing about the law.
Nicola is a dual qualified journalist and former solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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