Please Help

[sushi-lover]

Papasmurf.

I agree totally. Thankyou too for your input earlier.

Im not sure quite which way to go next

my solicitor has decided he should send me my file but wants to I quote

 

Hi

 

As a ps I like to save paper/ the environment where possible.

ive requested my file but whether or not i get it is another matter.

sushi

[Endymion]

To be honest when I first read the OP's original post I was quite incensed by their solicitors actions and his subsequent reponses but without the entire file of papers in front of me it is quite difficult to give any further advice as you are just going to wind your solicitor up even further and that probably is not going to be the best way to get the best settlement (although this should never be the case, we all know it happens).

 

As such, I would get the file of papers and go and see another solicitor. A good one i.e. someone who specialises in this stuff, is a solicitor with a few years under their belt and is recommended by APIL. They will give you a free 30 mins interview and they may well be able to advise you better than if if they review the file. Some firms don't like to tread on other firms toes, so you will need to advise them of the siutation before hand.

 

The Defendant's in these claims can make the Claimant's life very difficult in such circumstances. As such, to give some slight credit to your own solicitor (but not much) he may have been somehwt hamstrung by the Defendant's and the Court, however, I would reccomend he goes on a refresher or beginners course on client/solicitor relationships.

 

What you need to concnetrate on, if you can't find anyone to take on your claim, is to ensure you do everything that your solicitor asks of you so you cannot be criticised in any way and he can comply with any directions from the Court. in the meantime and once you have the file check:-

 

1. how was the Part 36 offer worded.

2. When was it made and how long did it take for your solicitor take to tell you about it.

3. Did the Defendant serve a witness statement within 21 days of the Defence as per Casey -v- Cartwright.

4. Did the Court give leave to the defendant to get their own medical evidence and if so, did your solicitor object.

5. Going back to the beginning, why did your solicitor litigate the claim? You have far more costs risks once you litigate and therefore it should be only done if you have a strong position. What you have to remember is that solicitors like to litigate the claim at a drop of a hat as they then get it out of the fixed costs regime and instead of being able to only recover £1,000 or so they can recover all of their costs, even though litigation may not be the best for thier clients - although I am not saying this was the case in your claim.

 

 

Good luck.

[sushi-lover]

Thanks Endymion...for all your help

Am waiting for the file to be posted.

In the meantime this is a response from my solicitor, I thought you might be interested

 

Just in case someone may have mis-informed, an opponent is not obliged to raise LV

within 3 months of an accident. What they are to do is respond to the letter of

claim within that time. Opponents don't always raise it from day one, sometimes much

later. In this case they did not take too long. The only consequence if a party does

not reply to a letter of claim is that then a party can issue early if they want to

i.e. they have final medical prognosis and a fully recovered client (which is rare

as most client's injuries last longer than 3 months).

 

In law it matters whether they put it (LV) in their defence when they go on record

with the court. LV is a watered down statement of fraud. To say yes they hit you and

are sorry, but then they hardly touched your car so you cant be injured from their

actions is them saying you are making up your injuries,/ your injuries are from

other matters. I also find it daft they were going on about the positioning of your

car.

 

Im waiting on the report from their orthopedic surgeon,

Am very down in the dumps about all this as its flared my asthma ..i thought it would so am trying to keep calm.

 

Thanks Again

Sushi

[Endymion]

He is right that they do not have to raise LVI within 3 months of the accident, but they do, by law have to raise it when replying to the letter of claim. I attach Casey for you to show what the Defendant HAS to do in order to rely upon an LVI defence. Ensure that the Defendant's have done this and if they haven't see what steps your solicitor has done to get the defence struck out. If they haven't followed the rules as set out in Casey and then your solicitor has not made an aplication or requesting that the LVI part of the defence has been struck out then technically he has been negligent by not protecting your position. Plus he keeps going on about fraud. It isn't fraud - the Defendant simply raises causation as an issue. If they were to raise it as fraud it would be very serious indeed.

 

DEBBIE CASEY V DAVID CARTWRIGHT (2006)

 

The Court of Appeal gave guidance on the procedure to be followed where a defendant in a low-velocity road traffic claim sought to adduce his own expert evidence on causation.

 

The appellant (D) appealed against the case management decision of the judge which revoked the permission granted by the district judge to rely on the evidence of a joint expert (W). D's car had collided with the rear of a car driven by the respondent ©. D admitted liability. C issued proceedings with damages limited to £10,000. C's particulars of claim were supported by medical reports from M which stated that C had sustained a typical soft tissue whiplash injury. D's insurers considered that as the claim was low-velocity impact case, causation would be in issue. The district judge gave permission to C to rely on M's evidence and to both parties to instruct W to deal with orthopaedic issues. Following a case management conference, the judge, having found that problems had arisen with W's evidence in relation to its objectivity so that he was not suitable to act as an expert witness, revoked the permission given to the parties to rely on W's evidence. D contended (1) that the defaults in the presentation of W's evidence could have been cured; and (2) that, following the decision of the Court of Appeal in Kearsley v Klarfeld (2005) EWCA Civ 1510 , (2006) 2 All ER 303 , the judge had erred in his approach to the permissibility of expert evidence on causation in low-velocity impact cases, as that authority had been interpreted as deciding that, where a defendant showed reasonable grounds for believing that the claimant had suffered no injury, the defendant should generally be permitted to adduce his own expert evidence on the causation issue.

 

HELD: (1) In the circumstances, the judge had been entitled to disqualify W from giving evidence. (2) In ordinary road traffic whiplash injury cases, there would be no need for expert evidence on causation. It was only where a defendant contended that the nature of the impact was such that it was impossible or very unlikely that the claimant suffered any injury or any more than trivial injury as a result of the collision and that accordingly the claimant had fabricated the claim that the causation issue would arise.

 

If a defendant wished to raise the causation issue, he should satisfy certain formalities: (i) to notify the other parties in writing within three months of receipt of the letter of claim that he considered the matter to be a low impact case and that he intended to raise the causation issue; (ii) the issue should be expressly identified in the defence, supported in the usual way by a statement of truth; (iii) within 21 days of serving such a defence to serve on the court and the other parties a witness statement which clearly identified the grounds on which the issue was raised, and which dealt with the defendant's evidence relating to the issue, including the circumstances of the impact and any resultant damage.

 

Upon receipt of the witness statement, the court would, if satisfied that the issue had been properly identified and raised, generally give permission for the claimant to be examined by a medical expert nominated by the defendant. If upon receipt of any medical evidence served by the defendant following such examination, the court was satisfied on the entirety of the evidence submitted by the defendant that he had properly identified a case on the causation issue which had a real prospect of success, then the court would generally give the defendant permission to rely on such evidence at trial.

[sushi-lover]

UPDATE...

 

Having had a quick look at some of the file so far they seem to have complied with the LV protocol so far. However I seem to remember that there was something mentioned about proportionality regarding costs, which they estimate at £10,000 ours are £8000. This seems to be a riduculous ammount considering I dont expect a huge payout!

 

There are too very little correspondence from the other side, alot has been done by telephone and they have changed solicitors at a late stage. Stalling seems to be a tactic too with my solicitors continually asking for their response.

Im going to have to ask if this is all their correspondence because it seems to be scant.

The photograph of my car actually doesnt show the exact point of impact, just the rear bumper.

They were accused by my solicitor of "cherry picking" their experts but I have been told that thew case has gone too far now and is reliant on the medical evidence, of which one of their experts have poo pooed with great effectiveness!

 

I havent seen the part 36 offer, just the refusal, which tallies with the dates on the emails, meaning it was done before I replied to the emails.

 

Im not sure Endymion, that I can garentee a full File.... I have definately wound up my solicitor.

 

Sushi

[papasmurf1cx]

"I have definately wound up my solicitor."

 

Good. They need to know that you are watching.

[sushi-lover]

UPDATE

Hi all, the latest as follows

I havent seen the part 36 offer at all

 

I have numerous paperwork, none of which is particulaly important just requests for replies...feel solicitor is carefully witholding some either that or negotiating has been done by telephone...correspondence from the other side is extremely scant!

it seems we are going to court, and I wont get any more information in time

 

Medical experts are using a photograph produced by otherside...Ive only just seen it after requesting the file as you suggested..it doesnt show point of impact, just scraping damage. as it was taken on mobile phone

 

There main defense seems to rest on the fact I didnt go to hospital at the time...this was becasue I knew I would be admitted and I had no network to look after my kids...and I couldnt risk care...

oh and on the fact that I didnt mention in my 10 min consultaions that I was still suffering after a car crash...or more importantly that the GP didnt refer to it when he/she wrote their assessement on the computer!!!

 

Im stuffed! Am at a loss as my asthma (stress induced) has cracked

 

Oh and I forgot to say that my insurance company might not even let us proceed to court

 

What do I say when and if I get there??

[sushi-lover]

BUMP!

Solicitors have informed me today that insurance company have withdrawn legal cover

he also intimated that they might be investigating for some reason but I have no idea what for. I havent had car insurance for three years as I have a motorbility car and the car in question was written off in 2007!

[MrShed]

Have you spoken to the insurance company to verify this?

[sushi-lover]

Hello Mr Shed.

I spoke to the Insurance company but couldnt speak to the legal dept themselves and I didnt hear back.

However my solicitor has just written an email to me I quote:

 

Hi

Good news your legal cover people have agreed to reinsstate your legal cover as long

as you now found in the eyes of the court to be a fraud.

 

Nice huh?

I am at a loss to know what to say or do.

1. The medicals that the defense had were three and a half years after the index incident and as I understand are saying that I wasnt injured based on these medicals and my health now

2.They have used a photograph in their evaluation that wasnt even reliable evidence as it didnt show the point of impact.

3. In their opinion because I sought treatment for my asthma (respiratory failure) and dealt with my homelessness and benefits tribunal before my injury, I didnt have one.

 

re point 2, I was advised by my solicitor to write to the consultants themselves if I disagreed or had a query!!!

 

I feel like giving up. my health is poor, and my asthma is borderline being admitted

[Endymion]

OK. First of all, I presume your medical evidence, that you are going to rely upon, confirms that your medical conditions are a result of your accident or exacerbated by the accident. If not then you need to ask your solicitor why he litigated when your medical evidence doesn't support your claim.

 

Sceondly, presuming your medical evidence does support your claim then your expert(s) and the Defendant(s) experts will need to prepare a joint report as to their agreements and disgagreements in regards to the cause and extent of your symptoms. Ask your solicitor if this has been done (unless you know) and if not when will it happen. Up until that point your evidence supports your claim and as such you have at least a 50/50 chance of succeeding.

 

If the joint report comes back and your expert(s) and their expert(s) agree that your symptoms are not related to the incident then you will need to discontinue. Your insurers should cover the Defendant's costs if this is the case. If they come back and either agree that your problems are related to the accident, then you are relatively home free or if they agree to disagree then you still have a chance.

 

Tell your solicitor to stop using the word Fraud if he is still using it. Tell him that it is upsetting you and affecting your medical condition and that they are not and never will be alleging Fraud but simply alleging that your symptoms were not caused by the accident. At worst the only thing that could be said (if the experts agree that your condition is unrelated) is that you have exaggerated your symptoms, but as you genuinely believe there is a connection and you really do have asthma etc then they will be hard pushed to prove it.

 

Once you have the medical evidence from the joint report or perhaps sooner, ask your solicitor if he is going to obtain advice from Counsel as to the prospects of success.