I phoned a couple of solicitors who seemed keen to help but some were charging up to 25% of my injury money and out-of-pocket losses, so I went with one recommended by my motorcycle shop; no 25% and I got a hire bike to run around on.
I do a fairly physical job which involves a lot of overhead work and the soft tissue injury to my shoulder has become worse. However, my solicitors started this case in the sub-£25,000 level and my treating surgeon (and the surgeon instructed in my case) have said I have nerve and tendon damage which makes working overhead difficult and painful.
I am more than 20 years away from a pension and my shoulder will not stand up to much more work. I have contacted some of the original solicitors who now will not touch my case. My current solicitors seem disinterested in pursuing my future loss of earnings and are blaming me for not raising it – even though the medical evidence originally produced by a bored GP said if I had shoulder problems after four months I needed to get a surgeon to look it over – which in fairness, they did after a year.
That surgeon described my working ability as significantly compromised and my solicitors still commenced the case below £25k. Is there a way out of this?
Answer
I am not surprised no solicitor would pull you out of the fire. You went for a free solicitor and as another observed, you got what you paid for.
Sorry to sound cruel but the “free” solicitor – actually an unqualified clerk – has zero self interest in pursuing your claim. He has made his money from the hire bike. The solicitors who were taking 25% actually had some skin in the game.
The only thing you can do – and I am going to get a bit technical here – is amend your updated schedule of loss. Your pretend lawyer will need to get either a barrister or a qualified solicitor to do this. This means your case will be put on the basis of your not being able to continue in your work.
Expect push back from the insurers, who may well be asking; ‘if your shoulder is so knackered, why did you need a hire motorcycle?’ and ‘Why are we only hearing about this loss of earnings less than six months before the trial and four years post injury?’. The Judge might well be intrigued but the trial judge is not bound by the cap you put on your case.
He or she will hear the evidence and decide what your case is worth. However, if you greatly increase the value of your claim – a partial loss of earnings for a 40-something skilled man is going to put the case well into six figures, not five – this will cause you problems.
If the Judge does not allow you to change your case, just before trial, by a factor of maybe ten, the insurers will only have to meet the case before the Court – a £25,000 case with no future loss of earnings.
Your case is due to be heard by a District Judge – the most junior rank of civil Judge – which are skilled and experienced lawyers but they will deal with your fast track’ case quickly. Your case is now the sort traditionally heard by a Circuit Judge, typically the next rung of promotion for a District Judge and with so much more at stake, your case now will need expert witnesses in court to be cross examined and will probably take three days. The Judge, I can tell you, will not be impressed by a change of value four years after the injury and 18 months after you had your medical report saying your employment was compromised – which was before you even started your case in court.
I am not optimistic the court will allow you to suddenly change your case with information you knew about and your, ahem, solicitor, failed to understand. You should tell them to put forward your future loss of earnings, drafted by a real lawyer – In writing – and if they do not, or the Judge throws it out for procedural reasons (which is likely) then you are looking at a negligence action against your current advisers.
Andrew Dalton
RiDE Magazine September 2022
