who decides on a settlement figure in a personal injury case?

mary p

If the PIAB decides the case is to complex for them and they let you issue proceedings,is it the defendants solicitors/barrister or the insurance company who decides on a figure for settlement?
When the defendants request your medical notes,do they send them onto the insurance company or do they give there opinion to what they think the case should settle for?
what is the protocol for this once they receive the medical notes/history?

Fann Linn

mary p wrote: »

If the PIAB decides the case is to complex for them and they let you issue proceedings,is it the defendants solicitors/barrister or the insurance company who decides on a figure for settlement?
When the defendants request your medical notes,do they send them onto the insurance company or do they give there opinion to what they think the case should settle for?
what is the protocol for this once they receive the medical notes/history?

I had a case over ten years back and my side presented the evidence, the insurance company made an offer, there was some tooing and froing and we all settled on a figure in the hall of the Four Courts. Didn't even step inside the Court.

hullaballoo

In the event that PIAB issue authorisation, it is up to the parties to agree a settlement sum between them. The lawyers involved will have their own views on the value of any given case. Most of the time, the lawyers can agree on a mutually acceptable sum. Ultimately, it is the client's decision whether or not to strike a deal at the levels being discussed.

In most personal injuries cases, the defendant is only the defendant in name and it is an insurance company dealing with the claim in the defendant's name. In those cases, the insurance company has a pool of claims handlers who will manage the process. In some of these cases, the claims handler will refuse to make any or any reasonable offer. Those cases have to either proceed to trial or be withdrawn by the plaintiff (with an expected costs penalty.)

If you proceed to trial, you may do better or worse than what was offered by the defendant before trial. That is a risk that must be borne in mind. However, if you are a plaintiff, everything that is done on your behalf is subject to your approval, including the decision to settle or proceed. Even if you are being strongly advised to accept a particular amount that is on offer, you are still free to decide to proceed to trial if you so wish.

Victor

Whoever is footing the bill, together with their advisers (solicitors, barristers, loss adjusters, etc.) will make an assessment, based on the evidence and arguments from the plaintiff's side. This will often be an insurance company - not the respondent. The respondent is likely to see very little of the nitty gritty.

The respondent, through their advisers, is likely to make a 'low ball' offer that is likely to be rejected. It may even be insultingly low. The plaintiff's side may make further arguments, detailing why the offer isn't acceptable.

The respondent, through their advisers, is then likely to make a less 'low ball' offer. The plaintiff's side may make further arguments, detailing why the offer isn't acceptable. They may or may not specify what might be acceptable, which they will try to high ball.

This cycle may repeat itself until the parties come to an agreement. Things that will affect the decision to prolong or curtail the negotiations will include things like emerging evidence, e.g. if there is ongoing medical treatment and expenses, the parties / advisers view of what the claim is really worth, etc., and the costs that build up during the process. Since actual days in court can be the most expensive, this is why many things are settled 'on the court steps'. It doesn't make sense to rack up €10,000 a day in costs, for a week, in a case worth €20,000 - unless there is some precedent at stake.

NUTLEY BOY

Generally, it is for the plaintiff to decide on the settlement figure.
If the plaintiff rejects the final offer or the defendant rejects the plaintiff's demands trial judge will decide the matter of quantum.
The lawyers will advise but it is the responsibility of the client to decide.

copeyhagen

im in the middle of this myself, I was told at the offset that I will never have to go to court and give evidence or anything, which is something I thought I would have to do.

in my case though, the defendant (insurance company) has already admitted liability, so now its just a matter of negotiation. the solicitor reckons it wont go to court, even though they have issued proceedings etc.

mary p

thanks for all our answers and opinions folks :).

mary p

so the protocol is the same if the insurance company employ a defence solicitor who in turn  uses there barrister to draw up "particulars of claim"?
Does the plaintiff,s solicitor and defentants try and settle when this is going on?or do they just let it play out to gather up a nice big bill!

Fian

A settlement is an agreement. The Defendant and the Plaintiff either agree on a figure to "settle" the case without going to hearing, or the hearing proceeds. You need to bear in mind the risk of losing and bearing costs if you do not settle.

Victor

Also, in certain cases, like children or wards of court, the settlement will need court approval.

mary p

mary p wrote: »

so the protocol is the same if the insurance company employ a defence solicitor who in turn  uses there barrister to draw up "particulars of claim"?
Does the plaintiff,s solicitor and defentants try and settle when this is going on?or do they just let it play out to gather up a nice big bill!

anyone......?

BattleCorp

mary p wrote: »

so the protocol is the same if the insurance company employ a defence solicitor who in turn uses there barrister to draw up "particulars of claim"?
Does the plaintiff,s solicitor and defentants try and settle when this is going on?or do they just let it play out to gather up a nice big bill!

If PIAB aren't dealing with the case or if the PIAB offer has been turned down by the injured party because it is too low, then the only option then is to issue court proceedings. Issuing court proceedings doesn't mean that you will end up in court, actually a very small percentage of personal injury cases go all the way to court. Mostly it's cases that the insurance company think they can win that go to court, or if the injured party keeps refusing any settlement offers that might be made. Cases can go on years. It may be several years before any settlement meetings are arranged.

If it's an insurance company that is representing the defendants, then it's not in their interest to keep letting legal bills run up. They usually try and settle cases early as that reduces legal/engineering fees etc. If they feel that their client is liable, they often have a settlement meeting with the injured parties legal team and see if they both can agree a figure. From experience, it usually takes more than one meeting before a figure can be agreed (if at all).

Once a settlement figure is offered that the injured parties legal team are happy with, they will advise their client and it's then up to the injured party to either accept or reject it. The insurance company may up their offer but if no agreement can be made at settlement meetings, then it's off into court to see what happens. An awful lot of cases are settled on the day that the case is due to be heard in court. And that can take years.

mary p

but  is it the defence solicitor who has been appointed by the  insurance company who decide to try and settle the case after proceedings have been issued?
ie...does the defence solicitors contact the insurance company and say "we should offer xx amount " to the plaintiff?

Victor

mary p wrote: »

but  is it the defence solicitor who has been appointed by the  insurance company who decide to try and settle the case after proceedings have been issued?
ie...does the defence solicitors contact the insurance company and say "we should offer xx amount " to the plaintiff?

That is likely something done at a meeting, with several cases dealt with in the one meeting. It is likely a joint decision that evolves over hte course of the meeting.

Note that the insurance company likely has much better information on claims in general, whereas the solicitor will know the specifics and nuances of the case and law at hand.

Some insurance companies also have solicitors on staff, but their functions in court cases can be limited, as they lack independence.

hullaballoo

mary p wrote: »

but  is it the defence solicitor who has been appointed by the  insurance company who decide to try and settle the case after proceedings have been issued?
ie...does the defence solicitors contact the insurance company and say "we should offer xx amount " to the plaintiff?

In general, it is the client's decision to accept settlement after proceedings have issued. This is true for plaintiff and defendant.

If the defence is being conducted by an insurance company, the claims handler has the final say. Normally, the defence solicitor will advise the claims handler of their view on liability and quantum (the amount of the claim.)

If it is at a stage where a barrister is involved, the barrister will also give a view of liability and quantum at a more specialist level.

In most cases, between the lawyers and claims handler, an offer will be put to the plaintiff and this is usually followed by a bit of horse trading until a figure can be agreed.

In some cases, the lawyers will say no offer should be made because the plaintiff's case is weak in their view.

In other cases, the lawyers will say an offer should be made because the plaintiff's case is strong or there are commercial reasons to do so.

In a few cases, the claims handler (or whoever is footing the bill) will ignore advice and make their own decision, as they are perfectly entitled to do.

nuac

Insurers could do more to control costs, e.g.

1. At early stage settlement meetings they often appear to be more interested in getting information to decide on a lodgement figure rather than making a realistic settlement offer.

2. When a case is in the list for hearing often they do not make a settlement offer until they see the Plaintiff in court with his/her legal team and witnesses.
In some cases they will not make a realistic offer until the Plaintiff starts to give evidence.

They are aware that most people do not want to get into the witness box and may accept a lower settlement to avoid that

Much of that conduct is silly gamesmanship by the defence team to impress their insurer clients.

3. In Med Neg cases altho' the defence team will be experienced in med matters there can be delay and difficulties in locating records, treatment protocols, personnel who have moved on, etc. etc.

Great reluctance to admit any fact, or to make any reasonable offer of settlement at any stage.

Some of that carryon may be due to the egos of the eminent treating meds. Those often seem to be much involved in decisions on the handling of the case - more so than defendants in other cases

kennM

mary p wrote: »

If the PIAB decides the case is to complex for them and they let you issue proceedings,is it the defendants solicitors/barrister or the insurance company who decides on a figure for settlement?
When the defendants request your medical notes,do they send them onto the insurance company or do they give there opinion to what they think the case should settle for?
what is the protocol for this once they receive the medical notes/history?

I went through the exact same a few years back. The only difference was insurance hadnt accepted liability despite it being essentially indefensible.

Long story short... court proceedings issued, they responded with full defence, we waited for court date to get closer. The impending high court date focused the mind of the insurance company and they met with us (my solicitor and barrister) and a settlememt was agreed. Ultimately the decision to accept or reject their offer is yours. Your barrister and solicitor will advise on possible damages that you could achieve in court based on pain and suffering/long term prognosis etc.

In my case insurance company did themselves no favour waiting so long. Im sure there was an extra 10 or 20k in additional legal/engineer fees accrued when they finally decided to 100% accept liability and negotiate the week of the case.

Hope it helps

mary p

once the defendant get a copy of your  medical notes,you would think they would then make an offer.?
Is it in the defendants solicitors interests to drag it out so the can put in a large bill to the insurance company?ie..make an offer at the last min/court steps?

the_sonandmoon

kennM wrote:

In my case insurance company did themselves no favour waiting so long. Im sure there was an extra 10 or 20k in additional legal/engineer fees accrued when they finally decided to 100% accept liability and negotiate the week of the case.

Often they will be waiting for their expert reports to advise them whether they have a case worth defending. That engineer could have submitted a report that would have removed any doubt on liability

the_sonandmoon

mary p wrote:

once the defendant get a copy of your medical notes,you would think they would then make an offer.? Is it in the defendants solicitors interests to drag it out so the can put in a large bill to the insurance company?ie..make an offer at the last min/court steps?

It's often not just about the medical injuries caused, but the forensic evidence gathered and expert report findings as to whether there is a defence. So even if the plaintiff is genuinely injured, and medical records show this, it may not have been as a result of any wrongdoing of the defendant, or the plaintiff may have partially contributed to it (contributory negligence). They won't just decide based on the plaintiffs evidence and med records.

kennM

mary p wrote: »

once the defendant get a copy of your  medical notes,you would think they would then make an offer.?
Is it in the defendants solicitors interests to drag it out so the can put in a large bill to the insurance company?ie..make an offer at the last min/court steps?

If liability is accepted there isnt a great deal of benefit in them dragging it out. There is a period between court papers being served up to a few months before trial date where legal costs wont really be accruing. As you've probably seen there are periods of a lot of activity and then nothing for ages.

The defence as probably well aware of people being out of pocket, financial pressures, the not knowing and they'll sit tight to see who blinks first IMO. If you contact them looking to settle then they know they can assume they can low ball you and you'll take it.

Warning: They can, and probably will, make a "tender offer".... judge is not aware of any tender offers or any prior negotiations. If you accept tender offer then job done, all finished. If you refuse, go to court, and the judge offers less then the tender offer can bite you. You could end up having costs awarded against you. Your solicitor will advise here. The window of tender I believe, or was for me, was 8 weeks before court date. For me they made a bags of thr tender offer, totally low balled and zero risk of less in my case.

I wouldnt be surprised if you dont hear anything for a while and when legal activity starts to ramp up a few months before trial date they look to negotiate then. Im assuming liability is not an issue here.

If liability is in dispute it is likely to go quite differently. Hope it helpa

mary p

Who arranges these meetings?

kennM

mary p wrote: »

Who arranges these meetings?

Sit tight and wait for court date now basically. IMO its essentially a game now, poker game. Both sides convinced they've got the better hand. You move first you weaken your position. The most likely thing is the defence solicitor contacts your solicitor and you solicitor in turn contacts you.

Sometimes they may simply make an offer this way... or offer to meet to negotiate.

Hope it helps...

You can instruct your solicitor to contact them to offer to negotiate.... I wouldnt advise. They could interpret this is weakness/lack of confidence in your case, they may low ball you thinking your desparate to settle etc.

ASSUMING LIABILITY IS NOT AN ISSUE.... you're in the strongest position. Sit tight and be patient. Pressure ramps up on them the closer to the court date you get.

Hope it helps

kennM

mary p wrote: »

Who arranges these meetings?

And another word of caution... you can be sure claims handlers scour the likes of Facebook, boards etc. for anything that can assist them in defending your case

I was chatting to a lady, through boards pm's, and they produced a picture of her she had posted on FB after finishing the womens mini marathon 1 year after her accident. She had claimed her life was impacted for 6 months due to injuries..... they tried to use the plus 1 year to try and discredit. Judge shot the defence down.

mary p

I think people who are saying they cannot bend down because of a bad back or cannot walk/bad leg and then post pictures of themselves running marathons or bungee jumping are asking for trouble.
There is nothing wrong with been on Facebook/social media if your been honest.its the world we're living in now.

kennM

mary p wrote: »

I think people who are saying they cannot bend down because of a bad back or cannot walk/bad leg and then post pictures of themselves running marathons or bungee jumping are asking for trouble.
There is nothing wrong with been on Facebook/social media if your been honest.its the world we're living in now.

Absolutely agree... 100% honesty is vital... I've read of cases being thrown out with costs awarded against for exagerating/lying about how bad symtoms are etc. and RIGHTLY SO imo!

hullaballoo

Yep.

It serves absolutely no one to exaggerate injuries. It's also very transparent when being done, Facebook pictures aside.

I'll personally never understand the compulsion to exaggerate but at the same time, I don't see how Facebook pictures are admissible evidence that gainsays oral testimony. Maybe I'm old-fashioned in that regard.

the_sonandmoon

hullaballoo wrote:

I'll personally never understand the compulsion to exaggerate but at the same time, I don't see how Facebook pictures are admissible evidence that gainsays oral testimony. Maybe I'm old-fashioned in that regard.

I've seen it quite a lot, and think it's a great tool. I was involved in a case where a parent was taking a claim on behalf of her child, claiming excessive injury following a very minor incident. Silly woman had pics of the kid up in Facebook for 2 years post accident, pre trial, doing exactly as was being claimed she could no longer do as a result of the accident.

She lost the case, but costs weren't awarded against her (had they been, it's likely no-one on the plaintiffs legal team would get paid, and a judge rarely allows that to happen). The case cost huge distress, as well as increased insurance while trial was pending, to the defendant.

No disincentive to chance making a claim, chancing your arm, when costs are covered, but that's another thread altogether.

kennM

the_sonandmoon wrote: »

I've seen it quite a lot, and think it's a great tool. I was involved in a case where a parent was taking a claim on behalf of her child, claiming excessive injury following a very minor incident. Silly woman had pics of the kid up in Facebook for 2 years post accident, pre trial, doing exactly as was being claimed she could no longer do as a result of the accident.

She lost the case, but costs weren't awarded against her (had they been, it's likely no-one on the plaintiffs legal team would get paid, and a judge rarely allows that to happen). The case cost huge distress, as well as increased insurance while trial was pending, to the defendant.

No disincentive to chance making a claim, chancing your arm, when costs are covered, but that's another thread altogether.

I read about a case involving a motor cyclist who was seriously injured, car was primarily at fault. There was a question mark over speeding that was never proven. However, he was also claiming for loss of income.... he was a tradesman. He had included a minor amount of nixers on the side in his loss of earnings and that didn't fly with the judge. Essentially judge threw the case out and awarded costs against him feeling that the loss of income was being artificially inflated.

I'm sure there was more to it than that but that's what was presented in the court outcome that I saw.

mary p

When you tell the truth,you can't go to far wrong.the defence may try and twist things,but that's there job.
It used to be the case the judge awarded less when plaintiff was caught telling lies,now the cases are thrown out of court.
But was does the defence not say at an early stage "we know the plantiff is working and is claiming loss of earnings" and save both sides costs...?

NUTLEY BOY

mary p wrote: »

When you tell the truth,you can't go to far wrong.the defence may try and twist things,but that's there job.
It used to be the case the judge awarded less when plaintiff was caught telling lies,now the cases are thrown out of court.
But was does the defence not say at an early stage "we know the plantiff is working and is claiming loss of earnings" and save both sides costs...?

Because you need the direct evidence to be rolled out first upon which you may then proceed to crucify the plaintiff on cross-examination and or subsequently with rebuttal type evidence.

Strategically, it can be a very bad idea to confront the plaintiff with the damaging evidence too soon as it affords the professional and practiced liar time to think.

The plaintiff carries the burden of proof which is that of the balance of probabilities. If you can show the plaintiff's evidence to be less than convincing that assists greatly in helping a judge towards the view that the requisite standard has not been met.

If a defendant wants to go further and adduce evidence that positively establishes dishonesty that has to be put before the court in a procedurally proper way. You cannot just make the assertion and leave it there....

mary p

Do the defence solicitors have there "favourite" specialist doctors to try and make little or nothing out of your injuries?

the_sonandmoon

mary p wrote:

Do the defence solicitors have there "favourite" specialist doctors to try and make little or nothing out of your injuries?

Yep, and plaintiffs solicitors certainly have doctors who embellish the extent of injuries and recovery

the_sonandmoon

I often think that one unbiased expert (motor assessor, doctor, engineer, whatever) could do a real service to the personal injuries process in Ireland. Hired by the court, rather than one or other side. Gives professional opinion on evidence.

I think that this non-adversarial system is in place in Australia (maybe?)

mary p

the_sonandmoon wrote: »

mary p wrote:

Do the defence solicitors have there "favourite" specialist doctors to try and make little or nothing out of your injuries?

Yep, and plaintiffs solicitors certainly have doctors who embellish the extent of injuries and recovery

But if these go to court,would a judge not be aware of these doctors who are employed by either side?
Iam sure " the same doctors/engineers" keep cropping up in these personal injury cases.

the_sonandmoon

mary p wrote:

But if these go to court,would a judge not be aware of these doctors who are employed by either side? Iam sure " the same doctors/engineers" keep cropping up in these personal injury cases.

Most insurance companies and solicitors will certainly have favoured experts. I imagine these are based on previous experience of, and faith in, the professional.

If I were a solicitor, and a client came to me with a potential claim, I would want the matter handled by an expert who knows the industry, including how to write a report for court, what to look for in the examination/survey/assessment, and ability to handle themselves on the stand. Many professionals would not want to, or be good at this. Hence why the same experts appear in court regularly.

mary p

If there is barristers involved,will they only discuss the case at the settlement meeting or would they discuss the case if they happen to be at the same court for different cases?

mary p

If there is barristers involved,will they only discuss the case at the settlement meeting or would they discuss the case if they happen to be at the same court for different cases?

Victor

mary p wrote: »

But if these go to court,would a judge not be aware of these doctors who are employed by either side? Iam sure " the same doctors/engineers" keep cropping up in these personal injury cases.

Both sides will seek experts that are well qualified, experienced and sound good both in written reports and in the witness box - that last thing they want is an antagonised judge.

kennM

mary p wrote: »

If there is barristers involved,will they only discuss the case at the settlement meeting or would they discuss the case if they happen to be at the same court for different cases?

Hard to tell... typically barristers are only engaged as it comes quite close to the trial date. Barristers are essentially independent "hired guns" that are engage by the solicitors. Naturally solicitors will tend to have preferred barristers depending on the nature of the litigation.

Could they discuss it? potentially... I'm sure it probably happens. Will they discuss specifics or anything strategic... highly unlikely. Ultimately they're on competing sides if it ends up infront of a judge both with their clients interests being their primary responsibility.

the_sonandmoon

mary p wrote:

If there is barristers involved,will they only discuss the case at the settlement meeting or would they discuss the case if they happen to be at the same court for different cases?

Generally, the barrister well review the expert reports and instruction documents, and give his opinion, forming the defence, a while before trial. They might come back to the experts with queries etc at that stage. But that really would be the limit of their involvement until the case is approaching trial.
If they are in court on another case, and meet a barrister they will be up against in a few weeks time, that case won't be on their mind.

mary p

Do you mean by "the barrister will give his opinion" in that he will say to settle before trial or give the defendants advice what to settle for?

kennM

mary p wrote: »

Do you mean by "the barrister will give his opinion" in that he will say to settle before trial or give the defendants advice what to settle for?

The barrister will advise on all aspects of the case to the engaging client. i.e. how strong the situation is with liability, additional measures that could be taken to confirm liability - e.g. engineers reports, etc., they will be in a position to advise on the range of compensation that would be appropriate etc.

All of the decisions are entirely in the claimants hands and you are entitled to heed their advice or not. They will not make a decision without prior instruction.

the_sonandmoon

mary p wrote:

Do you mean by "the barrister will give his opinion" in that he will say to settle before trial or give the defendants advice what to settle for?

Or the strategy to defend/prosecute. Next steps, etc. The barrister will be trying to get into the mind of the judge, and see the case as the judge will when it's presented to him.