Hi...This forum has been terrific for me previously that I now have a problem that is really stressing me out.

I will keep it brief please ask more questions as Im not sure how to explain it

In December 2006 I was hit by a car whilst driving...I was staionary but it was only a glancing blow. I was jolted forward and as it was unexpected i couldnt prepare for the accident

At the time i was on alot of medication for my asthma, and have been since, mainly prednisolone an anti-inflammatory.

The driver gave the wrong details but admitted liability. However it took 6 months or so to trace him and it held things up, as my insurance company didnt have confirmation of his admittance to liability...so they didnt do anything til he did

I was not seen by a doctor at the time as i didnt think the pain significant enough and as i say it was being masked by the asthma drug

I was unfortunate enough to be involved in another accident in 2007 but that has been sorted and the driver admitted liabilty, but the solicitors from the first accident are using this against me and saying my neck injury from the accident in December was caused by the second accident.

in 2008 I had a medical set up by my insurance company and it seems now that it wasnt very good.

I had physio and she said my injuries were coinsistant with whiplash

My soliciotr then sent me to a psychiatrist to assertain whether I had been affected in that way...my asthma is triggered by stress...

leap forward to March this year when the other side made an offer of £5000 which I accepted. However my solicitor thought it meant ontop of his fees so he then declined it. his fees then being about £2500.

Now its all gone crazy, Ive been sent to professionals setup by the other side and the psyciatric report is most unfavourable, taking my full medical history from childhood when I was adopted and a shy child, to abuse suffered in a marriage and putting all this confidential stuff in his report.

There was an awful lot going on since 2007 including homelessness, a benefits tribunal a possible fraud case, my asthma...respiratory failure and a coma...this has all been reported...he even wanted to know about my sex life...

the appointment was an hour. he didnt ask much about the accident to be honest

I dread to think what the orthopedic man has reported

Quite what these professionals can discover nearly four years after the incident i really dont know

My solicitor is moaning because he has employed a barrister to assess the case and it looks unfavourable but alot of the facts have been blown out of proportion or are incorrect.

Now the other side have withdrawn their offer

It looks like I will go to court and maybe lose.

Im concerned that I will then be liable for all the costs even though the man admitted liability...what are the chances of this?

Now I am coming off the asthma medication the symptoms form the neck are returning, I am in pain and just had an MRI... but it seems impossible to prove it was caused by the accident

All along I have said that it would have been easier to blame my neck problem on the second accident as they admitted and made their offer.

But why should I allow the man from the first accident shirk his resonsibility and let the second man pay for something he didnt do?

Im stressing so much. The psychiatrist has intermated that Im bi=polar and have serious mental issues but Ive never been diagnosed...

please help

hi sorry.

I need to add that I didnt instruct my solicitor that I was pschologically damaged by the accident, or that I was badly injured either. It has just got so out of hand, and I feel that my solicitors have just spent spent spent in their attempt to make a case that they will win and its backfired. at the end of the day, they will get paid wont they?

Quite a spaghetti junction !!!

To be honest from a layman's point of view it doesn't look good.

Doctors deal with medical opinions and in a PI action when there is differing and varied medical evidence they have to give an opinion on a portion of fault to the accident / accidents and other matters in your history that could affect that apportionment.

You have had a lot of incident in your life and they appear to be using that IN THEIR OPINION (bear in mind that opinion could be wrong and you obviously feel so) there are other matters that detract from your claim.

It is unfortunate that the 2006 accident was not pleaded at the time so you have been playing catch up ever since.

Lawyers (and Doctors doing expert reports) like to have clear dividing lines so the issues are clear. They are far from clear here.

Your solicitor seems to have been more concerned with costs rather than your interests which does not seem good.

What are you on here a No Win No Fee type of arrangement? That has to be important so far as cost are concerned.

In a trial costs are awarded to the side that 'wins.' That is decided on whether the plaintiff (you) beat any payment into court or offer made to settle. So they offered £5,000. If the judge awards you £5,000.01 you win. If he awards you £4,999.99 you lose and have to pay costs.

It is even worse in your case because although liability for the accident is not in doubt, your medical history is. So the judge may say that an existing condition contributes to the injury and he could reduce damages accordingly. So let's say that he says that that is 50%. He awards £5,000, but you would only get £2,500.

So as I say it does not look good.

So if you are unfortunate to get another injury where you want to sue someone you need to speak to people beforehand so you are SURE in your mind as to what you need to do.

Sorry if this is not what you wanted to hear. I wish you well.

Thankyou Papasmurf for your honesty.

Could you please explain your comment below? could it have been pleaded at the time bearing in mind the other side held up proceddings for 6 months by first giving the wrong details and secon not answering the correspondence? sorry in my ignorance im not sure what you mean..sorry

It is unfortunate that the 2006 accident was not pleaded at the time so you have been playing catch up ever since.

 

.

secondly, can I do something about the fact that I accepted the orignal offer and my solicitor rejected it when he discovered his fees werent included. I didnt formally reject it

and thirdly, will all my medical evidence be made public, in court because there are some really personal things that have been revealed and now scrutinised by strangers, I feel violated...this has upset me the most to be honest. I cant write here for obvious reasons

Can they really use an assessment taken some 3 1/2 years later as a realistic part of their defense

Thankyou

sorry another question, Im a pain I know

the other side have withdrawn their offer...will the judge still use the £5000 as the guide for who "wins " or not

there is no offer at all on the table now

Many thanks

What I meant was that, a) you were not seen by a doctor at the time of the accident. (So a complaint and diagnosis were clear from the incident) b) you didn't have a solicitor acting for you immediately after that accident. (So that statements could be taken, individuals traced or a claim lodge with the Motor Insurers Bureau). c) the other party's & insurer could be summons to court. Pleaded is a term lawyers use in court proceedings.

On your second point not quite sure. It may depend on the terms of any agreement you may have signed and as you have not indicated on what basis you instructed the solicitor I am no wiser. On the face of it if you have never instructed the solicitor that you did not formally reject it, you could perhaps write to accept it. But if the offer has been withdrawn anyway, there is no way you will get the money now. You could perhaps sue the solicitor but I am worried about the way you said "formally", it seems to suggest that you conversed with the solicitor and gave him some sort of instruction. Solicitors always make notes of conversations with clients. I would think that his subsequent actions were based on VERBAL client instructions. Even if these did not exist what are the chances that they do come into being should you start proceedings against him? It's a no hoper I think for you.

3.5 years later...... yes. They are experts and their opinions count in court.

The judge will NOT know or be told what offers were made nor if money has been paid into court. He does his judgement 'blind' so to speak ie fair to both sides. That is the theory, now whether anything underhand is done I would not care to speculate.

Thankyou so much, I am very grateful

all corespondence has been done by email, I have copies to prove it..when I said formally. I meant that I didnt write to reject it or sign anything

he took the decision to reject the offer independnatly and informed me afterwards because he said it was deplorable and he was livid.

re your explanation, again thankyou. Nothing was done at the time due to the other side and their lack of communication. I informed the insurance company immediately and they instructed the solicitor but the other side have always dragged their feet.

Now it seems like a tactic that has worked in their favour...

Sushi-Lover

Your solicitor cannot accept or decline any offers made to you by the third party. Your solicitor HAS to get your instructions after giving you an informed opinion. If they have not done so then they are breach of the solicitors code of conduct.

Furthermore, if you were not pyschologically injured as a result of the incident then I would love to know why they are getting a psych report on you, however, in any event, if you don't like the medical evidence then you don't have to disclose it to the other side. if they have disclosed it to the third party without your consent then they are again in breach of the code.

personally, if I was you I would go and see another firm of solicitors and ask them to take over your case and/or sue your own solicitors for neglogence as they sound like they have completely ballsed this one up for you.

Thanks Endymion

my insurance company allocated this solicitor to me as I was fully comp..... is it easy to change at this late stage? and would it effect my case?

To be honest I didnt know why they went ahead with the psch thing either...niavely I have gone along with everything they have done..and obviously to my cost.

its got so out of hand, I dont know what to do. Im just waiting for the orthopedic report the other side sent me for to come back and see what disaster happens now.

Hi

an UPDATE.

my solicitor wants me to get any medical notes that were missing, he informs me that his fees are over £7000.

I quote from his email:

The legal costs spent on this case now exceed £7,000. If you fail to beat their

offer which is now zero then we will not be able to recover our legal costs from the

other side. So please be advised that I have not been working on your file for the

sake of it and creating man hours and work to do. I have simply been believing you

and acting upon your instructions. I have never forced instructions upon you. I

would have actually preferred the case had settled sooner but when a defendant is

adamant you are a fraud then the case is naturally protracted.

They have not withdrawn accident liability. They are simply saying yes they hit you

but you suffered no injuries as a result of the accident.

I am still suffering pain from my neck, have just had an MRI scan, my orthopedic surgeon (seperate from the case) says I have some damage to the facet joints ...he saw this on an xray.

I dont know what to do

Fairly disgusting email from your solicitor if that is a direct quote from him although I bet you any money he isn't a solicitor....

You can change solicitors any time you want as long as you can find a firm that will take it on for you, which may be difficult now I understand that the defendant's are pleading a low velocity impact case against you.

Go back to your solicitors and ask the following questions (unless you can answer them yourself).

1. Who gave him instructions to reject the offer made by the Defendant? If you did then there is little you can do, but if he rejected it or did not advise you of it then he has been negligent.

2. Ask whether the offer was a Part 36 offer and if so, did the Defendants withdraw the offer by letter. If it is a Part 36 offer and they did not withdraw the offer in writing then you can still accept it.

3. Ask your solicitor when the Defendant made the allegations of fraud. I bet the Defendant has never alleged any fraud against you. If his email is verbatim, then he is seriously out of line suggesting you are making a fraudulent claim. Don't let him say that fraud is inferred as it isn't. It is simply that causation is raised. Fraud is a very harsh thing to plead against someone...... and unusual in these cases.

4. Ask your solicitors when the Defendant raised the Low Velocity Impact defence. The case of Casey -v- Cartwright is very specific in what the defendant has to do if they want to raise such a defence. Firstly ensure that the defendants have rasied LVI during or shortly after the initial protocol period for inivestigation. Secondly, they must raise it in their defence when proceedings are issued and then within 21 days of the service of the defence they must serve a written statement confirming why they make such allegations and on what basis. if they haven't followed these steps then they really shouldn't be able to raise such a defence and your solicitors should have applied for that part of the defence to be struck out.

5. Ask your solicitor, if the Defendant's have followed the procedure above, if the Court gave leave for the Defendant's to have you examined by their own medical expert. If not ask why he has allowed them to access your medical records and have you examined when there was no need to.

Let's see what their answer is to these questions....

Oh Gosh Thankyou, I could cry.

I will get onto it straight away and yes it is a direct quote, just cut and pasted

Sushi

I can answer some of these whilst I am waiting for a reply.

1. My solicitor informed me of the offer by email on

Wednesday, 17 March, 2010, 15:10

Hello

The other side are willing to offer £5,000 to settle the case. That is £335 to the treatment people (premier) and the rest is for you £4,665.

What do you want to do? Accept?

my reply: Thursday, 18 March, 2010 9:13

yes yes yes!

wow

ty

and again on:

Thursday, 18 March, 2010 9:53

yes please

lets get this over with

ty

Thursday, 18 March, 2010 11:31 he requested cheque

then on:On Mon, 22 Mar 2010 12:31 GMT ------ wrote:

>Hi

>

>I have bad news. The other side say that their offer included your legal costs, my time and the cost of your medical evidence. I am livid.

>

>I will decline their offer.

>

>Kind Regards

>

On Mon, 22 Mar 2010 14:31 GMT ------ wrote:

>Hi

>

>The other side offer is deplorable now. I have spent on medical reports, court fees and barrister advice close to £2,500 already-

>

>I am very annoyed with them. When they said costs in their offer I took that to mean the treatment costs not legal costs.

>

>Regards

>

i didnt reply to these emails til

Tuesday, 23 March, 2010 19:29 when t was all done

im sorry i wasnt around today. These people have been like this all along remember their client gave the wrong name.

If you want me to call and chat tomorrow i will but i trust your opinion and decision -------- if you need it for reference.

Was the ABOVE email that I wrote after he had declined the offer an instruction?

2. I have a copy the formal letter of withdrawal.

so i guess it was done correctly

3. ive asked about the fraud allegations just now

4. again re the LVI ..just asked waiting for reply

5. As far as I understand, the court ordered us to produce all the records and it was after that that they got their doctors to examine me

Hope I was correct to copy and paste the emails..i thought it easier

Sorry to be a pain.

and thanks so much again

Sushi

I would ask to see the Part 36 offer letter made by the Defendant's. The offer has to be black and white as to what the offer is, so unless your solicitor is an idiot it would say 'x' amount for general damages, 'x' amount for special damages, 'x' amount for costs/disbursements or 'x' in full and final settlement of the claim including costs.

However, in any event, he still went and rejected the offer without your instructions, which I would suggest is in breach of rule 2.02 of the solicitors code of conduct.

Plus, your solicitor should also have known that LVI had been raised and as such, advised you of the same which might have made the offer attractive to you and your solicitor in any event.

ty

will do..i will ask now.. still no reply to my other questions!

all along the other side have been reluctant to first make an offer or put a value on the claim, reply to correspondence, or apparently put a breakdown on their offer. but that is my solicitors version.im beginning to wonder

but I was always under the impression that the defense used this in a tactic to delay, which is why nearly 4 yrs later its still happening...they prob couldnt believe their luck when they heard that I had had another acident and then read my full medical history.

Sushi

re the LVI

Wed, September 22, 2010 10:59 am

Hi

They went on record with LV defence when they entered their defence to the court and

since. LV is legal way of saying fraud without saying it. I doubt they will

actually call you a fraud in court but they will certainly imply to the judge

Sushi

re the LVI

 

Wed, September 22, 2010 10:59 am

Hi

 

They went on record with LV defence when they entered their defence to the court and

since. LV is legal way of saying fraud without saying it. I doubt they will

actually call you a fraud in court but they will certainly imply to the judge

Sushi

 

 

So did they raise it in their initial response to the letter of claim and did they file the witness statement on or before 21 days from the service of the defence?

Ive just asked him to clarify that email regarding the time limit

i took it that the first time they "went on record" was only at the court stage

as of now hes not replied regarding the part 36 claim either

also Endymion, the defense gave the wrong details at the time of the accident, which held up my claim... isnt that a crime. ??

I asked solicitor he said the police wouldnt be interested.

I also asked if the defense was actually insured as the insurance is a work insurance and i wondered if he was actually covered at the time, again he said at this late stage it wasnt relevent.

I havent seen the photographs either he apparently took of my car on his mobile phone, again I only discovered he had when the barrister gave his advice.

Sushi

Ive just asked him to clarify that email regarding the time limit

i took it that the first time they "went on record" was only at the court stage

 

as of now hes not replied regarding the part 36 claim either

 

also Endymion, the defense gave the wrong details at the time of the accident, which held up my claim... isnt that a crime. ??

 

Sushi

It's not really a crime and the police certainly won't be interested in it.

His reply:

-------

Sorry you are grasping at straws. Sorry this is not relevant/ there is nothing wrong

for the court. Where are you getting these ideas thoughts from? The only relevant

issues now in your case are the medical records and reports.

Regards

I havent answered, I darent!

Now what do you suggest?

Sushi

The answers are very relevant, especially if they have been negligent, but to be honest I could give you loads of things to throw at your solicitor but it looks like you are not going to get any answers out of him in any event.

I would ask for a full copy of the file and go and see another firm of solicitors and see whether they will take on your claim, but also make sure you give your permission for your medical records to be disclosed (if the Court HAS actually made such an order).

ty,

Im not sure if my insurers will pay for the other solicitor and I cant afford to employ one.

i have given permission for my medical notes to be examined.

also Endymion. re the three month rule...

does that mean the first letter of claim that was sent to the defense by my insurers or the court summonds we sent.

because that will be possibly where there has been a hiccup

Sushi

He wont send me a complete copy of the file, it seems

It will take a long time to copy the whole of your file. You have a great deal of it

already. Please confirm what you specifically would like/ don't have and I will send

it to you.

I dont have alot to be honest, only the odd letter to the other side and the consent forms that I had to sign. I have got the medical reports etc. I dont have much correspondence from the other side.

Do I just repeat my request for the whole file? he wants specifics

Sushi I am really glad that endymion is on board for you now. I do hope you get the result you deserve.

I love this site.... it's like the cagger's load and point the weapon and the Op fires the weapon. What a great thing to happen.