Personal Injury Negotiation Tactics

Negotiations to settle personal injury claims usually occur when an offer of financial settlement is made by the defendant or by you, under advice from your lawyer. In higher value cases negotiations may commence at a joint settlement meeting (JSM) between the parties.

An offer to settle a case can happen at any time during the claims process. Usually, an offer is made when the claimant has finalised his expert evidence and it has been disclosed to the other side. In some cases, a defendant may make an offer before any expert evidence is obtained. This is why it is important to seek legal advice when making a personal injury claim as the offer might not be an accurate reflection of the compensation you deserve.  Acceptance of an offer before expert evidence has been obtained could result in a serious under-settlement.

In some instances, your personal injury solicitor may advise you to make an offer to the defendant. This could be alongside the disclosure of medical evidence, or to encourage the defendant’s side to negotiate.

Your solicitor will advise you on whether to accept or reject an offer; however, it is your decision to make unless the claimant lacks capacity in which case a litigation friend will provide instructions to the solicitor. If liability has been admitted and we have enough evidence to work out how much the claim is worth, we are likely to recommend that you settle your case at this stage. However, this certainly does not mean you should accept the first offer the defendant’s party provides which is often way below what the case is worth.

Set a Goal Compensation Amount

When making any sort of compensation claim, the main reason for doing so is to secure funds that may help you fund treatment and support and compensate you for any financial losses suffered as a result of an accident. To help you and your solicitor to work towards securing the right amount of compensation, ensure you have a good idea of how much support you will require and how much this will likely cost.

Accepting an Offer

If the defendant has made a fair offer that your solicitor thinks is acceptable, they may advise you to accept it. Even if an offer is fair your solicitor will use their experience and advise you on how best to proceed tactically to secure the best settlement possible. This may include for example further negotiation with the other side and making a counter offer.  Remember that accepting an offer in full and final settlement of your claim will mean that the case cannot be reopened at a later date even if it transpires that the case was worth more.  It is therefore vital that you do not settle your claim until you are happy with one of the following to avoid the risk of under-settlement:

• Any medical symptoms you have are resolved
• You are at a stage in the recovery period where your symptoms will not worsen and the expert evidence is complete

Once you agree to accept an offer, your solicitor will advise the defendant’s side and make you aware when you can expect to receive the damages in settlement of your claim.

Rejecting an Offer

If the defendant has made an offer and your lawyer does not believe it is appropriate, they will advise you to reject it. There are two reasons why this may be the case:

1. The defendant may have made an offer in advance of all the relevant evidence being gathered, which would mean that your claim cannot be appropriately valued
2. The defendant’s offer is below what we would anticipate you to recovr should the matter proceed to a final hearing.

In either of these instances, your lawyer will advise you on the next steps.

What is a Part 36 Offer?

Either the claimant or the defendant can make a Part 36 offer as a way to convince the other party to settle the claim without having to proceed to a final hearing.   A Part 36 offer is an offer with consequences.  If for example a claimant does not accept an offer from the defendant and then later fails to beat the offer there may be important cost consequences.

A Part 36 offer can be made at any point during a claim.  A minimum period of at least 21 days must be given to consider accepting the offer. If the offer is accepted during this period the party making the offer is liable for all costs of the other party. An offer cannot be altered or withdrawn during the 21 day period unless the court gives permission.

If you believe that the offer compensates you for your injuries and losses, you can accept the offer. Compensation is usually paid out quickly with Part 36 offers.  If you accept a Part 36 offer in full and final settlement of your claim you will not be able to claim any more money for your injuries at a later date even if it transpires that the case was worth more.

A defendant’s insurer may make a Part 36 offer to try and save money.  They may therefore make an early Part 36 offer before the expert evidence is finalised to try and avoid further costs being incurred.  Accepting an early Part 36 offer being the expert evidence has been finalised may result in a serious under settlement by tens or even hundreds of thousands of pounds. It is vitally important to seek legal advice from an experienced solicitor when negotiating a personal injury claim so you can be sure that you get the right settlement and do not under-settle your case.

Not Satisfied With Your Solicitor?

If you are not satisfied with how the law firm you have instructed is handling your case, we offer a “Check My Claim” service so you can get a second opinion on the service you are receiving from your current solicitor.

We can check your claim if:

• Your case has been mishandled or progress has taken too long
• You have been told your claim is not worthwhile pursuing
• You are not happy with the amount of compensation you have been told you will receive
• Your solicitor has settled your case on a lower amount of compensation that you feel you deserve

For more information on how you can switch solicitors, take a look at our dedicated page.