Section 5: Can I claim compensation?

Many people bereaved by a road crash can claim money from the insurance company of a driver whose actions contributed to the crash. Sometimes very significant amounts can be claimed, although this isn’t always possible.

The only way to find out if you should make a claim, and how much that claim might be worth, is to consult a personal injury solicitor as soon as possible. You shouldn’t have to pay a solicitor to meet with them and discuss your case and they may be able to visit you at your home.

You can check these things before you arrange a meeting. In many cases, you will also not have to pay for the solicitor’s work if they take on your case. It is the job of your solicitor to professionally pursue a claim that has a good chance of success and work to ensure that you are awarded as much as possible.

Instructing a solicitor to pursue compensation

To pursue a claim for compensation, you need to instruct a solicitor. You are advised to use a solicitor who specialises in fatal injury cases and who is qualified to act in the country which has jurisdiction. That normally means instructing a Scottish qualified solicitor if the crash happened in Scotland.

A solicitor you are considering using should agree to meet with you for free initially. You may wish to meet with more than one solicitor to ensure you are choosing the best one for you.

Here are some questions it is advisable to ask, to help you decide which solicitor to choose:

• Do you think I have a strong claim and are you willing to take on my case?
• Are you qualified to practise within the jurisdiction of the country where the crash occurred?
• What experience do you have in handling similar cases? Can you give me examples and their outcomes?
• How many similar cases have you handled in the past five years?
• What expertise do you have relevant to my case?
• What fees do you charge?
• What arrangements can you put in place for payment of these fees so that compensation I receive is not unduly reduced to cover legal fees, and so that I do not have to pay much, or any, legal costs if I lose?
• Will you handle my case yourself entirely, or involve colleagues?
• If you plan to involve colleagues, how much will they be involved, and if a lot, can I meet them now?
• How will we communicate during the process? Will you be available to explain things to me and answer my questions regularly through meetings, emails or over the phone?
• Are you a member of APIL and/or MASS?
  

It is important you sign an agreement with your solicitor that you understand thoroughly and consider fair.

It is also helpful to keep notes of conversations with your solicitor and copies of correspondence, so you can keep track of your claim.

The Law Society of Scotland can provide details of solicitors specialising in different areas of law. For more information, go to www.lawscot.org.uk.

If you received financial support from the person who has died, you may be able to claim different types of compensation for the loss of that support. Your solicitor can give you more details about each of these types, and may advise you to make one, several or none of these claims. All claims depend on liability being established. Whether you can claim or not is dependent on your relationship to the person who died. Your solicitor can advise you.

1. Loss of support claims
   In certain circumstances, people who were financially reliant on a person who has died can claim for the loss of that support. This is called a loss of support claim. The amount that can be claimed is not fixed. It depends on the amount of support provided by the person who has died.
   
   A loss of support claim often includes a claim for loss of income. This amount will be worked out according to how much the person who has died earned, how long they would have continued earning if they had not died and other factors. A loss of support claim can also be made for loss of income from a pension of someone who has died.
   
   If you are making a ‘loss of support’ claim for yourself, or on behalf of others such as a child, your solicitor will help you consider all losses and help work out how much to claim in total. Evidence including employment records and household bills may be required to prove loss of support claims.
   
2. Service claims
   A service claim may include a claim for loss of services provided by the person who has died, including childcare, DIY, or other domestic jobs. It can also include services provided for a loved one if they survived the crash for a period prior to death, such as nursing or care services at home.
   
3. ‘Loss of society’ claims
   A payment can often be made for your bereavement. This is called a ‘loss of society’ claim. The claim aims to provide some level of compensation for the following: distress and anxiety over a loved one’s suffering prior to their death; grief and sorrow over a loved one’s death; and the loss of a loved one’s ‘society and guidance’ due to their death. The amount that can be claimed depends on the nature of your relationship with a person who died and other factors, including the age of a person who died. Many relatives of someone who has died can claim. Your solicitor can advise you.
   
4. The suffering of someone who has died
   If someone died after suffering a period of pain, then it may be possible to claim money in compensation for that suffering. The amount that can be claimed is based on the amount of time that the person suffered and the extent of the pain. It may be possible to claim for loss of expectation of life, if someone knew they were going to die.
   
5. Funeral expenses
   The cost of the funeral, or most of the cost, can be claimed from a liable party.
   
6. Claims for children aged under 18
   Money can be claimed on behalf of a child or children under the age of 18. An adult will normally pursue the claim on their behalf. This adult is usually a parent or guardian. The court may appoint someone independent to act on the child’s behalf.
   
7. Claims for injuries
   If you, or anyone close to you, was injured in the crash, it is important to find out if you, or they, can make a claim for those injuries and losses resulting from injuries. Your solicitor will advise you.

Starting a claim (also called ‘raising an action’)

You and your solicitor will decide whether you should claim, what claim(s) to submit and how much to claim. Your solicitor will normally write to the motor insurer for the person you are making a claim against (known as 'the other side'). Once the other side has acknowledged receipt of this letter, they have a period of time to investigate and say whether or not they accept they are liable and should pay you money.

Negotiating your claim

If the other side admits liability and agrees to pay you money, it may make an offer, or several offers, which are lower than the amount your solicitor thinks you are due and has asked for. For example, if you are pursuing a loss of support claim, the other side may use information in medical and employment records of the person who has died to argue your claim is too high.

Most claims in which liability is admitted are settled through negotiation, without the need to go to court. You can refuse or accept any offer made. Your solicitor will advise you whether an offer is reasonable.

Court proceedings

If you are not offered an acceptable amount through negotiation, or if liability is not admitted, your solicitor may start legal action (civil proceedings) against the other side. Depending on the case, your solicitor will usually issue a summons in the Court of Session, but may issue a writ in the Specialist Personal Injury Court or a local Sheriff Court. Most claims must be raised in court within three years, although sometimes claims must be made within two years. Proceedings may be raised sooner to ensure any award is made as soon as possible.

If your solicitor has issued a summons or a writ against the other side, it does not necessarily mean your case will proceed to a full court hearing where witnesses give evidence. Your solicitor will continue to try to negotiate a settlement with the other side. In some cases an interim payment (or part payment) is made by the other side prior to a final payment. The vast majority of court actions are settled without the need for any hearing of evidence.

Tenders (formal offers made during court action)

A formal offer called a tender may be made by the other side. If you reject a tender and then later negotiate or are awarded a settlement which is the same or less than the amount tendered, you will be liable for the legal fees of both sides from the date of the tender. If the final settlement is higher, the other side will probably have to pay most, if not all, of your legal fees.

Tenders should be very carefully considered. There are many reasons why it may be better to negotiate a settlement out of court. Success in court cannot be guaranteed and you cannot pre-determine the decision of a sheriff or jury. Also, your case may take a long time to be heard in court.

Sometimes, the other side will make an acceptable offer just before a case is due to be heard in court.

Your solicitor should let you know if any tenders are received and will be
able to advise you on whether the offer is acceptable.

Going to court

If a negotiated settlement cannot be reached, your case will be decided in court. Your claim will usually be dealt with in the Court of Session or the Specialist Personal Injury Court. Both courts are in Edinburgh. Your solicitor may or may not try to have your case heard in front of a jury rather than a judge or sheriff sitting alone. Sometimes a case is dealt with in a local Sheriff Court. Your solicitor will advise you.

Knowing that solicitors and insurance companies are negotiating over the value of your loss can be distressing, particularly if your case takes a long time to be resolved. Ask your solicitor to keep you updated on a regular basis about how your case is progressing.

Your solicitor should be able to explain what is happening in straightforward terms and be available to talk to you regularly, over the phone or in meetings. They should be happy to answer any of your questions.

It is a good idea to keep notes of conversations with your solicitor and copies of correspondence so you can keep track of your claim.

Ensure you know who is handling your case. Sometimes several people in a solicitor’s office may work on your case.

Complaining about, or changing, your solicitor

If, at any stage, you are unhappy with the service you are getting from your solicitor, you can ask to speak to the partner in the practice responsible for looking after clients, often called the ‘client relations manager’.

If you remain dissatisfied, it may be possible to change solicitor.

The Law Society of Scotland gives information about making a complaint against a solicitor on its website at www.lawscot.org.uk.

The Scottish Legal Complaints Commission can help with your complaint and provide a template letter to help you write a complaint about a solicitor.

You can also complete an online form to make a complaint about a solicitor. To find out more, call the Scottish Legal Complaints Commission on 0131 201 2130 or go to www.scottishlegalcomplaints.org.uk.

If you are awarded money, the other side will usually have to pay most, or all, of your legal fees.

The other side will usually pay for any other costs your solicitor has incurred, as long as these costs were reasonable. These costs, such as the cost of medical reports, are called ‘disbursements’ or ‘outlays’. In some cases, the other side may not have to pay these costs. Your solicitor can advise you.

If your claim is unsuccessful, you may be liable for your legal costs and those of the other side. Your solicitor should help you to take out a legal expenses insurance policy that covers you against this risk. However, there are a number of ways to pay for any legal costs you incur that do not require you to be able, personally, to afford to pay very much money.

Speculative fee agreements or damages-based agreements (no win, no fee)

Many solicitors offer a speculative fee agreement (SFA) or damages-based agreement (DBA), sometimes known as a ‘no win, no fee’ arrangement.

Under these arrangements, you don’t pay any money to your solicitor up front. If your claim is successful, your solicitor may or may not charge you a ‘success fee’, in addition to their costs being paid by the other side.

Before starting your claim, you should agree with your solicitor, in writing, the size of the success fee they can charge if your claim succeeds.

Under a SFA, a success fee can be up to the same amount again as your solicitor’s legal costs.

Under a DBA, a success fee is assessed as an agreed percentage of the damages awarded. Scottish law limits the maximum fee that can be charged under a DBA.

One important advantage of a SFA or DBA is that you are protected against having to pay the other side’s costs if your claim fails.

Under a speculative fee or damages-based agreement, your solicitor should not need to charge you any money as your case proceeds, nor expect you to carry any risk if your case fails. If your solicitor proposes this, you may wish to consult a different solicitor.

Paying upfront

Some people choose to pay their solicitor as they go along.

You may be able to do this if:

• you can afford to pay a solicitor;
• you are insured for legal expenses. It is worth checking the details of motor and house insurance policies and membership of bodies such as trade unions, although sometimes these policies don’t provide enough cover. Your solicitor can advise you.

Legal aid

If you have disposable income below a certain level, you may qualify for legal aid. Legal aid is help towards the costs of legal advice and representation provided by a solicitor and is paid for out of public funds.

Legal aid may be free or you may have to pay a contribution towards the costs of your case. Legal aid does not cover your opponent’s legal costs.

Should you lose your case, you may be ordered by the court to pay some or all of your opponent’s costs. You may be able to apply to the court to have this sum reduced. In such instances, you should seek the assistance of your solicitor.

To find out more about legal aid or to obtain help in finding a solicitor who is registered to provide a legal aid service to you, contact the Scottish Legal Aid Board's helpline on 0131 226 7061 or go to www.slab.org.uk.