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HOW
DID IT HAPPEN?
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Make a written note of any witnesses
including any attending Police Officers
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Ensure that any relevant accident book is completed accurately. Do not sign anything that
you do not agree with
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Take photographs and draw a sketch plan of the scene of the accident in other cases as soon as possible after the incident so that important evidence is not lost if the situation changes. Do not draw on or make marks on original photographs or plans
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Write down your recollection of how and why the accident happened
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OOH,
THAT MUST HAVE HURT!
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If you have visible injuries, take photographs both at the outset and as the healing progresses.
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Keep a "pain diary" - detail how your injuries are affecting you on a day to day basis and log any medication taken or treatment received.
It should also record any help you receive from relatives or friends together with any expenses incurred
How much is it costing you?
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The general inconvenience that inevitably follows an accident cannot form part of your claim. However, you can claim for your financial outlay, such as replacement car hire charges, taxi fares, home help or the cost of medicine. Obtain and keep receipts.
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If you are unable to work, then you can claim for loss of income. If you are employed, then your claim is relatively simple to prove. However, if you are self-employed, then matters may be more complicated. Claims will normally be based on the figures in your past tax returns, but frequently other evidence is required.
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EXPERTS
What
we do:
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We will arrange for a medical report, setting out the nature of your injuries how they were caused and their effect.
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If fault for the accident is not admitted, then reports from other experts may be necessary
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Most claims will fall within the Personal Injury Protocol where it is necessary before instructing an Expert to try and agree who should be instructed with your Opponent’s representatives.
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The number of Expert witnesses that can be used is severely restricted in order to keep the costs of the claim “proportionate to its value”.
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You should also be aware that once a report is obtained both we and your Opponent can ask questions of the Expert. However, it is very difficult to challenge the opinion of such an agreed expert.
The Expert's duty is to the Court and not to you or your Opponent.
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For large or complex claims the Court may allow each side to instruct their own experts
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MAKING
YOUR CASE
McEwens will prepare your statement, one of the most important documents in the legal proceedings. It will be shown to:
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Your opponent so as to show the strength of your case
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Your Barrister so that they know what you will say if your claim proceeds to trial
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The experts to assist them in preparing their reports
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The court to explain your case to the judge
The statement will deal with:
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How the accident happened and why you believe that it was your opponent's fault
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Your 'pain and suffering' and any continuing effects of the accident on your life
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Any past or ongoing financial losses
You may also be required to give oral evidence before the judge and your opponent can cross-examine you on your statement and anything relevant to your claim.
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WHO
SAW WHAT?
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We will prepare statements from people who saw the accident or can otherwise help say how it happened.
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In respect of claims for serious personal injury, useful witnesses would include those people who could comment on how the injuries sustained by you have affected your social, domestic and working life.
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CONSULTATION
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When we have prepared your statement and a medical report has been obtained we will discuss the conduct of your claim with you further.
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It may be possible to look for a settlement relatively early, or it may be necessary to wait until your injuries are resolved. In either case it may be appropriate to sort out whose fault it was at this stage.
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If it seems there are problems with your case we may instruct a Barrister to advise, but if it has sufficient merit we may draft legal proceedings straight away
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NEGOTIATIONS
& SETTLEMENTS
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Settlements are encouraged by 'part 36' of the court rules
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Either you or your opponent can make a Part 36 offer.
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If you reject an opponent's offer and fail to secure an award greater than that at court, then you will have to pay both your own costs and your opponent's from the last date that you could have accepted the offer up to and including the trial costs. These costs would be very substantial.
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If you just manage to beat the offer then there is still a risk that costs will be awarded against you because the court could take the view that you should have entered into negotiations with the other side.
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If your opponents reject your Part 36 offer that you suggest, and you are awarded more than this in court then your opponents can be ordered to pay you enhanced interest on the money at 10% above base rate and enhanced costs.
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ISSUING PROCEEDINGS
Whilst McEwens try to settle our clients' claims rather than have them go to court, it is sometimes necessary to issue court proceedings to get full and proper compensation.
We will prepare:
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A Statement of Claim, setting out how the accident happened, why you believe that your opponent was to blame and a summary of your injuries and losses. You will sign to confirm that you believe it to be
true
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A
'Schedule of Special Damages' setting our your financial losses
We will issue the claim form in the appropriate court and serve the statement of Claim, Schedule of Special Damages and Medical Reports on your opponent's solicitors
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DEFENSE &
ALLOCATION
Your opponent normally has 28 days within which to respond to your claim by way of a
defence.
Once the
Defence is served the court will decide whether to allocate the case to:
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the small claims track - cases where the value of any claim for personal injuries is not more than £1,000
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the fast track (cases valued between £5,000 and £15,000)
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the multi-track (cases over £15,000 & complex cases)
The court will also set a timetable for the progress of the case and allocate a date for the trial
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DISCLOSURE
& EXCHANGE OF EVIDENCE
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The next step is for the parties to exchange lists of all the documents that they have or know of relevant to the claim. This will normally take place within 4 weeks of allocation
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There will then be an exchange of expert evidence and witness statements.
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TRIAL
& JUDGMENT
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BENEFIT
TRAP!
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If you receive, or anticipate receiving, state benefits, such as income support, then receipt of compensation by you may affect your benefit entitlement.
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This can be avoided by arranging for the money to be held by someone else " in trust" for your benefit. If you think that this might affect you, please talk to us.
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WILL
YOUR COMPENSATION BURN A HOLE IN YOUR POCKET?
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If you receive a significant sum by way of damages, then you may wish to invest some of it for the future.
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We recommend that you seek the advice of an independent financial adviser (I.F.A.). We have a link with Gavin Wilkie of
Manor Financial Planning, who has advised members of this firm for many years. He is not a member of McEwens and is regulated by the Financial Services Authority instead of the Law Society.
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