Common Mistakes in Personal Injury Cases in Scotland and How To Solve Them

Number One – Settling out of court.

If you pursue Personal Injury cases ask yourself a question;

“If I settle out of court who will benefit the most from this?”

If you think it will be your client be prepared to think again.

Go on ask yourself, that case in your filing cabinet, you know the one where liability was conceded twelve months ago, investigation completed six months ago and not raised because the insurers promised to settle it.

Come on are you really going to tell me that the client is benefitting from you sitting on the case for six months?

Many reasons are given for agents seeking to settle extra-judicially;

  • I have a reasonable offer or am very close to a reasonable offer from the insurers that is worth taking. 

Of course there will always be cases where the insurers do a godfather – no, not threaten you with sleeping with the fishes: the offer that can’t be refused.

However are you sure?

Insurers are not in the business of rolling over and throwing money at a case at the first opportunity.  Some of you will remember Graeme Garrett’s excellent article in the Law Society Journal on this subject, A Breach of Protocol: Why the Voluntary Pre-Action Protocol is not working.  He analysed over 2,000 cases litigated between 2005 and 2007.  The average settlement in Sheriff Court cases was twice the pre-litigation offer. In the Court of Session it was nearly three times more. A growing area of professional negligence is against solicitors who seriously undersettle client’s cases to avoid litigation.  I remember one case where a lawyer told his client to accept £1,500. The client sought a second opinion from me and after litigation he was awarded £91,000.

  • The case is worth so little that it would be uneconomic to raise a court action.

Wait a minute here.  Uneconomic for whom?  What happened to client’s best interests?  Are you telling your client, your case is worth £4,000 but you have got to take £2,000 because I am not getting paid enough? I doubt it.
If a case is not viable economically for your practice then you should decline to act.

  • You are not confident on liability and want to bluff a settlement out of the insurers

Rarely do difficult cases become easier merely by the magic of time.  Insurance companies are not mugs.  They are not going to think the Pursuers are doing nothing with this case, they must have a cunning plan, we must settle!  As the Supreme Court maxim goes, “What is forgotten is rarely proven”.

If you have an issue with liability deal with it.  Have you done everything you can to establish liability?  If it is an area you are not sure about seek advice.  As a specialist solicitor agents call me every day to run something by me.  I am quite happy to help.  I work on the principle that if you do someone a favour they are more inclined to do one for you in return.

  • My client does not want to go to court. 

For the vast majority of civil clients court is a very foreign land.  You mention the word and they think that they will be instantly transported in to an old Bailey dock where some evil genius of a prosecutor will tear them apart. They think that as that is what happens on TV.  Yes TV is their only point of reference.  TV is of course responsible for the three great legal myths; all lawyers are rich, clever and sexy.

Of course 98% of litigated Personal Injury cases settle out of court.  Clients are more comfortable once they have been reassured that the chances of them ending up in the dock are the equivalent of Hearts fulfilling their Romonov destiny in winning the European Cup in the next three years (I live in hope!)

  • Court Action is unnecessary

If we were honest the most common reason for keeping an action out of court in a busy office is the extra hassle of court action. So it is often seen as a last resort.

Many agents only raise if they have to.  Writs or summons only see the light of day if the the case is unfairly declined or if the triennium is approaching.  I have lost count of the times agents have beaten a path to my door clutching a bulging mattress to their chest and seeking my assistance on a triennium buster.  My record is receiving instructions at 4.45 pm and served at 5.30 pm.

I think very few agents would disagree with the view that leaving litigation to the last minute is not only unadvisable but a guaranteed short cut to the realms of professional negligence.

  • Court Action will delay settlement

An insurer dictates the pace a pre-litigation claim proceeds.  I bet if you open up all your pre-litigation Personal Injury files in 90% of them you will be waiting for a letter from the insurers.  Before you know it two or even three years have passed without anything substantive happening.  Raising a court action after all that is of course going to feel like a further delay.

Clients quite rightly expect their lawyers to get on with their cases and not dither about.  As soon as the action is raised the court dictates the timetable and the defenders are under pressure to respond to your case.  No one gets to hide.  By using the pre-action protocol, then litigating once the defenders have had an opportunity to offer settlement, the case will be swept on to a conclusion at a time when other lawyers are sitting on a file waiting to hear from the insurers.

  • The Client does not want to take the risk of court expenses.

No Personal Injury client should ever be expected to litigate without some form of protection against expenses.  A client was recently referred to me who had gone to a well known firm specialising in Personal Injury as a result of a simple Road Traffic Accident.  The lawyers litigated without expenses insurance and as a result of unforeseen circumstances the case was lost and the client had expenses of over ten thousand awarded against him.

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