In all cases, it is our job to identify the person involved and the institution (usually an insurance company) which will ultimately have responsibility for paying out the compensation due to you.
Assuming we are dealing with an insurance company, we will intimate your claim to them by letter and then negotiate on your behalf, with a view to settling your claim by agreement.
If this initial step is unsuccessful, then it may be necessary to raise court action to pursue your claim.
As a guide, it is reasonable for insurers to take up to three months from the point they first take on a claim to the point where they decide, in principle, whether to pay you compensation or not.
This generally involves gathering evidence to show that their insured was in some way responsible for your accident before accepting liability.
A. The co-operation we require from you
In many ways, a personal injury claim is a ‘team effort’ between you and us.
At all stages of your claim:
- you must give us instructions that allow us to do our work properly
- you must not ask us to work in an improper or unreasonable way
- you must not deliberately mislead us
- you must co-operate with us when asked
- you must go to any medical or expert examination when asked
B. The possible categories of claim scenario from a cost point of view
From the outset, we will be able to tell you which of the following categories you fall into.
Below, we explain the way we deal with claims, depending on –
- Whether the claim is legally-aided or ‘no win – no fee’ or covered by some form of Legal Expenses Insurance
- Whether the claim settles before or after a court action is raised
- Whether, you live in Moray and/or had your accident in Moray, or, you neither live in Moray nor had your accident in Moray.
i. Legally-aided claims
In this situation, we will assess if you qualify for Legal Advice and Assistance – a form of legal aid.
Your eligibility depends on your financial circumstances (both income and capital) and will also depend on your family circumstances too (for example, the financial resources of a spouse, civil partner or cohabitant generally have to be included where the advice relates to a possible accident claim).
Legal aid – negotiated settlement without court action
In the event that your claim can be settled in this way, the insurance company will pay agreed compensation to you.
They will pay a separate fee to us, based upon the amount payable to you, on a sliding scale.
This Pre-action Protocol settlement fee from the insurers will be what pays us for the work we have done on your behalf.
If your claim is settled this way extra-judicially, your Advice and Assistance is effectively irrelevant. We will not, in those circumstances, be making any claim on the legal aid fund.
Where the advice and assistance might, however, come in to play is in the situation where no agreement can be reached to allow your claim to be settled extra-judicially.
If, at that stage, you decide that you do not wish to proceed further with your claim then our fees and outlays will be covered by the Scottish Legal Aid Board.
This means, the advice and assistance can be seen simply as a ‘safety net’ to ensure that, if you do not get anything as a result of the legal services we provide to you, you will not have to pay us.
Because we will be operating under the advice and assistance scheme, there are one or two matters about which you need to be aware:
- You should note that we are not able to provide legal services to you without the continuing approval of the Scottish Legal Aid Board. This means that from time to time we have to ask the legal aid board to approve our providing further continuing legal services to you. This can sometimes cause delays in progressing your case, but regrettably this is unavoidable.
- We must also have the approval of the legal aid board before we incur any major expenses such as the cost of a medical examination by a specialist, or anything which constitutes an “unusual expenditure”. Again, this can cause delays in progressing your case but it is out of our hands and unavoidable.
In all situations, if you are on legal aid and your claim settles without the need for a court action, you will receive your compensation in full, without any deductions.
Legal Aid – Court Action
If we reach the point with your case that liability to compensate you is denied, then it will only be possible to progress your case by raising a court action.
If court proceedings are considered, then we must apply on your behalf for Civil Legal Aid. This is a separate form of legal aid to Legal Advice and Assistance, and the rules are quite different.
If a civil legal aid application is to be submitted, there are a number of forms which you will need to complete. We will generally have to send a statement to the legal aid board from a supporting witness about the circumstances of your accident, as well as some form of medical evidence (e.g. a letter from your GP or a medico-legal report from a hospital consultant).
Assuming that civil legal aid is granted, we will raise a court action on your behalf.
We would hope that, as happens in most cases, it would not be necessary for the court action to proceed all the way to a hearing at which you would have to give evidence.
If the case does settle ‘out of court’ after the action has been raised, it will be on the basis that an agreed sum is paid to you and judicial expenses (as calculated according to the applicable Sheriff Court scale) would be payable to us.
Civil legal aid will act as a ‘safety net’ in the situation where your court action is ultimately unsuccessful.
Expenses generally follow success in court actions – so if your action is unsuccessful you could theoretically be found responsible for meeting the other side’s expenses according to the judicial scale. The likelihood of you having to pay costs if your claim fails has been reduced by the introduction of Qualified One-way Costs Shifting.
In any event, in our experience, you will not be found responsible for the other side’s expenses beyond the level of any contribution you have to pay for legal aid.
More difficult issues arise when the other side puts in a formal offer or ‘Tender’ through the court.
Where a Tender is lodged, it means expenses and their likely effect on the amount of money you will actually receive at the end of the day becomes less straightforward to predict.
It is not possible to discuss this in any detail here, but if a Tender is lodged for any court action we raise on your behalf, we will discuss its implications in detail at that time.
With only very rare exceptions, if you are on legal aid and your claim succeeds at some point after court action is raised, you will receive your compensation in full, without any deductions.
For further information on legal aid in personal injury claims in Scotland, see this article on our blog.
ii. Speculative or ‘no win – no fee’ claims (‘After the Event’ insurance)
If you are not eligible for some form of legal aid then we will be dealing with your claim on a ‘no win – no fee’ basis.
No win-no fee – negotiated settlement without court action
When your claim can be settled in this way, the insurance company will pay agreed compensation to you.
They will pay a separate fee to us based upon the amount payable to you, on a sliding scale, usually in terms of the Scottish Compulsory Pre-action Protocol.
The greater the amount of the compensation that is agreed, the greater the amount of the fees payable to us by the insurers. However, the fees are not paid out of your compensation; they are paid separately and in addition to your compensation.
We will also be entitled to a Success Fee – 10 per cent of your compensation – to reflect the risk we have taken in running your claim “no win-no fee”. The maximum permitted Success Fee is 20 per cent of a person’s compensation. 20 per cent has become the “industry standard” level of deduction. With us charging only 10 per cent, it means you end up with more of your compensation. For example, in a no win-no fee case which settles at £70,000, it is the difference between you receiving £56,000 in your hands and (through us) £63,000.
From the Success Fee we recover from you, we will also meet the cost of an insurance policy which we require to take out in all speculative or ‘no win – no fee’ cases handled by us (speculative fees or “after-the–event” (“ATE”) insurance).
The cost of the insurance premium depends upon whether your case arises from a road traffic accident (current premium: £89.60) or another type of accident (including accidents at work) (£341.60). Another possible type of accident where a higher premium applies is where there has been a slipping or tripping accident in a public place – the premium there is £431.20. The insurance policy is taken out by us at the same time as entering into a written speculative fee agreement (or “Success Fee Agreement” with you).
One important point to note about the policy premium is that it is only payable in successful cases.
If the claim is unsuccessful, there is no premium to pay (the premium itself is “insured”).
Additionally, any outlays (e.g. court dues and the cost of medical expert reports) we have incurred in pursuing your claim from the point when the insurance policy was taken out will be covered under the insurance and will not be your responsibility.
In cases where you live in Moray and/or suffered your accident in Moray, there are benefits to us which mean we can deal with the claim more economically and, to reflect that fact, we agree to absorb the cost of the ATE insurance ourselves. (We still have to take out the insurance and pay the underwriter the policy premium at the end of the claim).
No win-no fee – court action
If we reach the point with your case that liability to pay compensation to you is denied then it will only be possible to progress your case by raising a court action.
We will give careful consideration to the grounds upon which liability is denied and discuss with you whether or not it is realistic to raise a court action in an attempt to obtain damages for you.
At the outset of a claim, it is not possible for us to confirm whether or not we will be prepared to go to the extent of raising a court action for you in the event that liability is denied. That decision depends upon a multitude of factors, some of which may be unique to your case, and some of which may not yet have come to light.
However, for example, the following commonly found features in a case will tend to increase the likelihood of our being prepared to raise court action to pursue it to a conclusion (and the opposite will tend to have a negative effect on our assessment):
- it has a high value on full liability
- any likely contributory negligence is at a low level
- the case can be pursued in a Sheriff Court local to us (e.g. Elgin) or the case appears to be suitable for resolution by means of a Jury Trial (in which case, we would raise proceedings in the Court of Session in Edinburgh);
- there are good prospects of establishing liability based upon the available evidence (e.g. witnesses, documents etc.)
If we are going ahead with a court action, we need to have the written speculative fee agreement and ATE insurance (referred to above) in place.
The insurance is particularly important in cases which go to court.
Expenses generally follow success in court actions. The introduction of Qualified One-way Costs Shifting in Scotland has made it much more unlikely that you will be found responsible for the other side’s costs if your claim fails but the risk is not nil.
The insurance provides expenses cover, so that you are financially protected against this possibility.
The worst-case scenario from your point of view is getting no compensation.
We would repeat the fact that, in the event the claim is unsuccessful, there is not even the insurance premium to pay (it’s only payable in the event the claim is successful).
As indicated, the risk that we take in raising a court action under no win-no fee has a number of consequences.
First of all, we are entitled to charge a ‘success fee’ to you in the event of success.
This is a percentage of your compensation and this will be 10 per cent in most cases.
The level of success fee is something which goes into the written speculative fee agreement we enter into with you.
Secondly, the risk element means that there is a possibility that a point may be reached with your claim where our respective interests may conflict to some extent.
One example of this is where, after proceedings are raised, information comes to light which makes it clear that there is no longer any reasonable prospect of succeeding with your claim. In that case, we have the power to terminate cover under the insurance policy. The policy will cover all expenses against you up to that point.
Another example is where your opponent makes an offer to settle your claim which we consider to be reasonable and one which you should accept. If you do not accept our advice, we have the power to terminate future cover under the insurance policy.
We will do our best to keep you fully advised in relation to your claim at all times and would hope that such difficult situations will not arise. However, it is important for you to realise that the object of the claim is to secure a reasonable payment of compensation for you, taking into account the risks inherent in your claim both as regards liability and quantum; it is not, except as a last resort, to allow you to ‘have your day in court’, come what may.
In the court action situation we describe here, the percentage loss you face from your compensation is 10 per cent, in the event your claim succeeds.
As we keep banging on about, the problem with many personal injury claims is that you lose 20% of your compensation if you’re successful. Through Moray Claims at Grigor & Young LLP we aim to provide local specialist-solicitor advice in such a way that your personal injury claim is free if it fails, and costs you no more than 10% of your compensation if it is successful (and sometimes even then will cost you nothing).
Our aim in no win-no fee cases, is to end up with a situation whereby you will not lose more than 10% of your damages in meeting a Success Fee.
An exception to 10 per cent maximum Success Fee in no win – no fee claims
Where it is not generally possible to restrict the Success Fee to 10 per cent is in situations where we advise that proceedings should be raised in the Court of Session in Edinburgh rather than in the Sheriff Court (generally, these are claims with a likely value in excess of £100,000).
This is because, in Court of Session cases, we have to instruct the services of an Edinburgh solicitor to deal with aspects of the court action.
Because Success Fees are capped at 10 per cent of compensation, we will usually have an arrangement with the Edinburgh solicitor whereby the total Success Fee is 20 per cent and we share it – in other words, so they get 10 per cent and we get 10 per cent.
Summary in relation to no win – no fee
Assuming we deal with your claim to a conclusion on a ‘no-win no-fee’ basis, there are two possible ways that a successful conclusion can be achieved.
- The first method is where your claim settles without the need for a court action. In that case, the ‘fee’ payable from your damages is the agreed Success Fee of 10 per cent of your compensation.
- In the second situation, your claim settles after a court action is raised – either by agreement with the other side or as the result of a judge or jury’s decision in the case. In this case, the actual ‘fee’ payable from your damages depends on whether we have raised the action in the Sheriff Court (10 per cent success fee) or the Court of Session (20 per cent success fee).
- In the event that your claim is unsuccessful, you pay nothing. We hope this is adequately explained above. You have no possible responsibility to pay the insurance policy premium – in the event the claim is lost – because it is only payable in the event that the claim is successful.
iii. Legal Expenses Insurance (‘Before the Event’ Insurance)
The third possibility for funding depends on you having taken out insurance before the date of your accident (“before the event” (“BTE”)). Usually, this type of insurance is an add-on to some other kind of insurance (e.g. house contents or buildings insurance).
We will ask you to check whether you hold any relevant BTE insurance policies. If it appears you do, with your permission, we will contact the insurers on your behalf and ask if the insurance can cover us for the particular injury claim.
It is standard that such policies will only cover a firm of solicitors such as Grigor & Young LLP (Moray Claims is a trading name of Grigor & Young) from the point where it becomes necessary to raise a court action. In many personal injury claim situations, it is not necessary to raise court action at all. The only thing we need to establish is that the insurance cover exists.
This is quite a complex area and there are several articles on our blog about different aspects of Legal Expenses Insurance of the BTE type. The Category page for all our Legal Expenses Insurance articles can be accessed by clicking here.
For example –
- Knowing whether legal expenses insurance covers you for a personal injury claim.
- How legal expenses insurance can give you access to justice that might otherwise be denied you.
- Questions you should ask your legal expenses insurer if you want your own solicitor to handle your claim.
Contact us for further information
The above explanation is necessarily lengthy and possibly a bit confusing. It is not easy to explain these things in the abstract.
We are happy to discuss any potential personal injury claim with you a free-of-charge, no obligation basis. We can explore with you how best to run any claim and make sure you understand from the outset what any costs risks might be.
Moray Claims has not been around for that long but Grigor & Young has existed in Moray for approaching 200 years. If clients were unhappy with our personal injury claims service and the funding packages we offer, we would not be able to continue in business for long.
If you have any questions at all, feel free to contact Marie Morrison or Peter Brash on 01343 544077 or Make A Free Online Enquiry.
