The Claimant is the person pursuing the claim – the injured person.
A claim pursued by a Claimant under the age of eighteen must be pursued on his or her behalf by a responsible adult. In any court proceedings the person pursuing the claim on a child’s behalf is described as a “Litigation Friend”. Generally a parent will act as litigation friend in this claim.
If the claim has not have been resolved by the time child reaches the age of 18, then he or she will be entitled to take over the conduct of the claim.
The Defendant is the party against whom the claim is pursued. The Defendant may be a private individual, a partnership, a limited company or other legal entity such as a Hospital Trust.
If it is necessary to start court proceedings, to pursue a claim for compensation for personal injuries, the general rule is that proceedings must be started before the end of the limitation period.
The limitation period generally expires three years after the cause of action arises i.e. the date of the accident. Failure to start proceedings within the limitation period is likely to lead to the claim being statue barred and in those circumstances it would not be possible to pursue the claim whatever its merits.
Where the injury is sustained by a child the three year period does not start to run until his or her 18th birthday.
The start of the limitation period may also be delayed where a person does not have knowledge that they have sustained significant injury that is attributable to their opponent’s negligence. However, the rules on this aspect of the law are complex and care needs to be exercised in assessing when such knowledge is acquired. We can advise you further regarding the limitation period.
“No win no fee”/ Conditional fee agreement/ Success Fee
An option that we can frequently offer Claimants will be to act under the terms of a conditional fee agreement (a “CFA ). A CFA is commonly described as a “No win, No fee” agreement.
A CFA is an arrangement for funding a claim under which the solicitor is only paid for the work carried out if the claim is successful.
Sometimes the CFA also provides for a success fee to be paid in the event of the claim being successful. A success fee is an additional fee over and above the solicitor’s basic costs which reflects the risk taken that if the claim fails the solicitor will not be able to charge for the work carried out. Again the success fee is only paid if the claim is successful.
Success fees payable under CFAs entered into before April 2012 are recoverable from the Defendant. Success fees payable under CFAs entered into after April 2012 will no longer be recoverable from the Defendant.
Compensation arising for personal injuries and loss.
Special Damages and General Damages
During the course of a claim for compensation arising from personal injuries, reference may be made by lawyers to "Special Damages" and "General Damages".
Special Damages are financial losses that can be calculated by some definable measure. For example, loss of earnings can usually be calculated taking into account a known weekly wage and a known period of absence.
General Damages relate to compensation which cannot be calculated against any definable measure. For example, compensation for pain and suffering cannot be assessed through some arithmetic calculation. It is assessed by the Court on the basis of what is regarded as reasonable in the light of conventions applied by the Court.
Heads of Damage
The various component parts that may make up an award of compensation are referred to as "Heads of Damage".
Heads of Damage may include heads of general damage such as the following:
- pain, suffering and loss of amenity
- loss of congenial employment
and heads of financial loss such as:
- past and future loss of earnings
- past and future cost private medical costs
- past and future cost of nursing care
- other out of pocket expenses arising directly from the injury
Personal Injury Trust
A trust is in essence a “legal container” in which assets are placed and held separately from any other assets you own. A Personal Injury Trust can be used as a
“legal container” for compensation received from a personal injury claim.
Trustees administer the trust. The trustees are be able to make payments from the fund for the benefit of the injured person.
Please contact us if you would like any further details of the assistance we can offer.