What is this?
A claim for personal injury or medical negligence may be “under valued” or “under-settled”.
An important part of a Solicitor’s role is to value the claim. This forms a fundamental part of the advice concerning the merits, risks, viability and economics of a claim.
An undervalued claim will often lead to either:
- A case not proceeding when it should have done, or
- A case settling at an undervalue.
This can happen when a Claimant is advised to accept an offer which is substantially below that which their claim is worth, so that the Claimant achieves an “under-settlement”.
Why Does it Happen?
The most common reasons for your solicitor under-settling your claim include:
• Failing to identify and properly assess the relevant medical issues
• Failing to adequately review medical evidence and instruct the correct or relevant experts
• Failing to value your case correctly
• Failing to seek and obtain adequate evidence in support of all of your losses
• Failing to listen or take adequate instructions about your losses
• Failing to include all heads of loss
• Failing to calculate your losses correctly
• Over or under estimating the risks, strengths of your evidence and arguments in your case
• Over or under estimating the strengths of the other side’s case
• Using the wrong values or the wrong method of valuation
• Advising you not to proceed due to a negligent low valuation
• Over allowing for reductions or discounts in the calculation of damages
• Making an error as to the application of a relevant law to the merits or valuation of your case
• Missing important litigation dates leading to a failed case or reduced settlement
• Lack of experience
When there is an apparent under-settlement of a personal injury or clinical negligence claim, there are often difficult issues involved, which led the Solicitor to undervalue the case. It is not always obvious when a case has been settled for less.
Why did you not know the Value of your Claim?
You may not actually have been aware of the potential value of your claim or the implications of early settlement when you agreed to settle. The most likely reasons are:
1. You were pushed into a quick settlement by your solicitor.
2. You were never actually advised about the potential value of the claim and what would be an appropriate settlement figure.
3. Your solicitor failed to consider any risk of future complications you may face which meant that an early settlement was not appropriate.
4. Lack of mental capacity to make decisions about settlement and the absence of a ‘litigation friend’.
What do I need to prove?
You will need to show that overall your claim was under-settled. It may not be relevant that one part of the claim was wrongly calculated if, in fact, the settlement figure was in the right range.
Not every apparent under-settlement derives from an undervalued case. To establish a negligent under-settlement you will need to prove that there is a significant difference between what was achieved and what ought to have been achieved.
What will the Court consider?
The Courts will take into account the pressures and risks alive at the time of settlement and only determine a settlement as negligent if it falls outside what could have been achieved by a reasonably competent Solicitor, taking the circumstances of the case into account. The court will take account of the likelihood that one witness or expert might have been preferred over another and will not necessarily find the claim has been under-settled simply because the settlement is less than that recommended by your expert.