What It Might Cost To Bring A Personal Injury Claim
- AuthorKay Ditcham
Since the government abolished Legal Aid for personal injury claims in 2000 the vast majority of such claims have been brought under the terms of a Conditional Fee Agreement, more commonly referred to as a ‘No Win, No Fee Agreement’. This means that in the normal course of events, if a person has been injured in an accident that was not their fault, he/she can pursue a claim for damages in respect of these injuries with the assistance of a solicitor, with no risk of a Costs Order being enforced against them even if the claim is lost.
However, the position is not as straightforward as it might at first seem to be and there are a number of exceptions to the normal rule.
Since 2013 Personal Injury claims have been subject to qualified one way cost shifting (QOCS). This means that if court proceedings are issued and the claim is lost a claimant will no longer be required to pay the opponent’s costs as would previously have been the case. However, there are two situations that can occur which would result in a potential liability to pay such costs.
The first situation is where the claim is found to have been ‘fundamentally dishonest’.
This is not restricted to an entirely fraudulent claim but can include the situation where some element of the claim has been exaggerated. For example, if someone claims that their injury prevents them from performing a certain activity such as playing sports or lifting heavy weights and is subsequently found to have engaged in such activities, then it is possible that the claim will be found to be fundamentally dishonest. It is not unusual for defendant’s insurers to obtain surveillance evidence or check a claimant’s social media and the like, to secure such evidence.
The second situation can occur where a claimant has been made an offer of settlement which is rejected and the claim proceeds to trial.
If at trial, the Judge awards an amount equal to or less than the offer made then the claimant will be obliged to pay the defendant’s costs incurred since the date of the offer out of the compensation award. In lower value cases this may mean that despite succeeding in their claim, the claimant will effectively end up with nothing.
A claimant who has been injured in an accident should not be put off making a claim for damages in relation to those injuries. However, it is necessary to ensure that the evidence is honest and consistent and in the event of an offer being put forward that a claimant listens to the advice of their legal advisor with regard to whether or not it should be accepted. Provided the claimant follows these steps then the worst scenario is that he/she will gain nothing but conversely, in the event that the claim is unsuccessful he/she will not be required to pay any costs to the winning party. If a claimant can establish liability then compensation will be awarded in relation to the injuries sustained.
The Personal Injury Team at Tilly Bailey & Irvine Law Firm has represented hundreds of injured claimants. If you would like advice about making such a claim please do get in touch.