Is this a record? | Thompsons Solicitors

Is this a record?

We received instructions on 8 November 2005, spoke to the client and sent out a letter of claim on the same day. The client had suffered minor whiplash injuries. The insurers put forward an offer of £1450 on 23 November. After discussing the matter with the client on the same day he decided to accept it. Two weeks from start to finish.

It pays to fight

The client suffered whiplash in an RTA. The effects of the injury resolved within 6 months. Liability was admitted. Direct Line instructed Cogents who paid into court £1325 and refused to discuss or negotiate from that offer, We made a Part 36 offer of £1500.

The case went to assessment. Before the hearing we indicated that we would take £1450 which had they accepted would have meant that the success fee would have been reduced to 12.5 per cent. The defendant’s counsel had no instructions to negotiate and the assessment therefore went ahead. We were awarded £1450 plus a 100 per cent success fee.

This case shows that:

Good case on resiling from admissions

While under the influence of alcohol, the claimant suffered catastrophic injuries when she fell from a platform to basement premises beneath.

In May 2004 the insurers wrote a without prejudice letter stating: “having investigated this claim, the defendant is prepared to admit a breach of duty. However we are instructed to seek contributory negligence at 50 per cent.”

The claimant requested an immediate interim payment of £150,000. She subsequently rejected the 50 per cent offer.

The defendants then re-sent their earlier letter removing the references to its being without prejudice. Proceedings were issued and the admission was pleaded. The defence sought to resile from the admission and to put primary liability in issue. The reason was “the admission was made on an incomplete understanding of the relevant facts”. They said that they had made an investigation prior to the admission, but that the reason the admission was withdrawn was that the solicitor had consulted counsel experienced in catastrophic injury claims who advised that the circumstances did not justify a concessionary approach.

The Master refused the application to resile. On appeal, the Judge dismissed the defendant’s appeal. He pointed out that counsel had been asked to advise on primary liability only after the decision had been made to concede it. The admission was not a mistake but was based on an incomplete understanding of the relevant facts; it was a fully informed decision made by solicitors advising their client, who also took into account the views of their re-insurers.

When considering issues of prejudice, he highlighted prejudice to the claimant who was a seriously injured young woman who had suffered disappointment and been prevented from proceeding with an application for an interim payment, and would also face a trial on primary liability, which was entirely different from the limited trial resulting solely from the allegations of contributory negligence.

Sowerby -v- Charlton (2005) EWHC949, Playford J