Solicitor mistake, likely outcome
Discussion
About two years ago I suffered an injury to my back following a non-fault accident, this caused me a lot of pain and I was sent for physiotherapy to try and relive it. In order to get my excess back from the third party I used the solicitors recommended by my insurance company who said they would also put in an injury claim. I received a letter offering £Y for my injury and £X for general inconvenience. Even after physio I'm still in pain so I was sent for an MRI scan, it was found that I have permanent damage to my back which will only get worse as I get older, however as this scan took place after the insurance arranged medical the solicitor said they couldn't really take it into account but they did advise (by letter) that after informing the third party of this update they had increased their offer for personal injury offer by £200, the £X for general inconvenience stayed the same, the letter included a statement to sign saying I accepted the offer of £Y+200 and £X as full and final settlement for my accident.
I initially contacted the solicitor and rejected this small increase by email, the solicitor replied (also by email) saying that £Y+200 was a good offer and I should take it, so I replied back again by email saying I accepted. A cheque and covering letter arrived over the weekend, the letter said I had accepted £Y+200 as full and final settlement for my accident, the £X for general inconvenience was missing from the letter and the cheque! I’m assuming the solicitor has forgotten about the £X in the final settlement. I emailed them this morning pointing this out but I just wondering what’s the chances of them admitting their mistake or will they just take the email I send saying I accepted £Y+200 for personal injury as meaning I accepted it as a the full settlement, I haven’t signed anything saying I would do this.
TL/DR: had accident, offered £Y for injury from accident, £X for general inconvenience, following an MRI scan this was increased to £Y+200+X, I initially rejected, then accepted this by email, cheque arrives for only £Y, will the solicitor admit their mistake and forward cheque for £X
I initially contacted the solicitor and rejected this small increase by email, the solicitor replied (also by email) saying that £Y+200 was a good offer and I should take it, so I replied back again by email saying I accepted. A cheque and covering letter arrived over the weekend, the letter said I had accepted £Y+200 as full and final settlement for my accident, the £X for general inconvenience was missing from the letter and the cheque! I’m assuming the solicitor has forgotten about the £X in the final settlement. I emailed them this morning pointing this out but I just wondering what’s the chances of them admitting their mistake or will they just take the email I send saying I accepted £Y+200 for personal injury as meaning I accepted it as a the full settlement, I haven’t signed anything saying I would do this.
TL/DR: had accident, offered £Y for injury from accident, £X for general inconvenience, following an MRI scan this was increased to £Y+200+X, I initially rejected, then accepted this by email, cheque arrives for only £Y, will the solicitor admit their mistake and forward cheque for £X
rainagain said:
I emailed them this morning pointing this out but I just wondering what’s the chances of them admitting their mistake or will they just take the email I send saying I accepted £Y+200 for personal injury as meaning I accepted it as a the full settlement, I haven’t signed anything saying I would do this.
Perhaps best to wait & see what they say.IANAL & I'm sure one will be along shortly but this link explains the ramifications of emails:
"Even emails and text messaging can constitute a legally binding agreement!
As lawyers, one of the repeated misconceptions we see is that clients tend to assume that provided they haven’t signed a document, there’s no way they can be bound by it. Indeed, clients are often quite surprised, and, in some cases alarmed, to learn that seemingly casual email conversations, which (even) contain text speak, can be sufficient to create a legally binding contract or even a guarantee.
This has been confirmed recently in the case of Golden Ocean Group Ltd v Sagacor Mining Industries PVT Ltd and another [2012] EWCA Civ 265. Here, the Court of Appeal confirmed that an enforceable guarantee can be created by a series of emails authenticated by the online signature of the guarantor. The parties exchanged a series of emails where they agreed a series of amendments to a standard-form document. The language used was far from formal legalese and it even included text speak. At the end of the negotiations, one of the parties asked the other to provide a full and complete signed agreement incorporating all the key terms. In fact, this document was never drafted (never mind signed), but the court confirmed that the parties intended to be bound by the terms which they informally negotiated and agreed in the emails. The court went further and said that if a person puts his name on an email to indicate that it comes with his authority and he takes responsibility for its contents, it will be deemed to be a signature for the purpose of section 4 of the Statute of Frauds 1677. This is the case even where only the first name, initials or perhaps even a nickname is used."
http://www.parissmith.co.uk/blog/even-emails-text-...
I'd have a few concerns:
1. Defendant insurance companies don't make offers for "inconvenience". It's not a recognised or valid head of claim. The claim for injury and any "inconvenience" all falls within an award for PSLA (Pain, Suffering and Loss of Amenity).
2. That your solicitors have advised you to accept "£X" when you clearly have ongoing issues with your back could be negligent in its own right. The warning sign was that you needed a scan. Your solicitors should have had your medical expert re-examine you after you'd had the scan so he could update his prognosis. It seems this hasn't been done. (Although you don't really provide enough info for me to give you an opinion about this).
3. If you've accepted £X + £Y then you should have received a cheque for the full amount. However, what are your finding arrangements with your solicitors? Did you agree to forego a percentage of your claim in respect of costs? If not, you need the missing cheque.
Keep us updated.
1. Defendant insurance companies don't make offers for "inconvenience". It's not a recognised or valid head of claim. The claim for injury and any "inconvenience" all falls within an award for PSLA (Pain, Suffering and Loss of Amenity).
2. That your solicitors have advised you to accept "£X" when you clearly have ongoing issues with your back could be negligent in its own right. The warning sign was that you needed a scan. Your solicitors should have had your medical expert re-examine you after you'd had the scan so he could update his prognosis. It seems this hasn't been done. (Although you don't really provide enough info for me to give you an opinion about this).
3. If you've accepted £X + £Y then you should have received a cheque for the full amount. However, what are your finding arrangements with your solicitors? Did you agree to forego a percentage of your claim in respect of costs? If not, you need the missing cheque.
Keep us updated.
I think the problem comes from them saying the offer for personal injury is £X+200 do you accept and I emailed back saying I accept the offer of £X+200, meaning I accept the offer of £X+200 for the personal injury part of the claim and I think they have just forgotten about the £Y part. In hindsight I should have said I accept the offer of £X+200 for personal injury.
From what you've said, the paper trail seems to indicate a mistake by your solicitor. They may or may not accept that mistake, who knows.
Give them a few days to sort this out. If they refuse, or start dragging their heels, then make a FORMAL complaint to them, stating clearly what the issue is, and how you want them to resolve it. From that point, they have 8 weeks to resolve the complaint, after which you can refer it to the Legal Ombudsman (this is presuming your solicitor is within their remit, which they probably are, having been referred to you by your insurance company).
Going through the LO can be a lengthy process, but it takes minimal effort, and costs you nothing.
If you cash the cheque they've already sent (some people may advise you not to), then tell the solicitor that you do not accept it as full and final payment, for the above reasons.
Give them a few days to sort this out. If they refuse, or start dragging their heels, then make a FORMAL complaint to them, stating clearly what the issue is, and how you want them to resolve it. From that point, they have 8 weeks to resolve the complaint, after which you can refer it to the Legal Ombudsman (this is presuming your solicitor is within their remit, which they probably are, having been referred to you by your insurance company).
Going through the LO can be a lengthy process, but it takes minimal effort, and costs you nothing.
If you cash the cheque they've already sent (some people may advise you not to), then tell the solicitor that you do not accept it as full and final payment, for the above reasons.
Answering Nezquick's questions:
1. Defendant insurance companies don't make offers for "inconvenience". It's not a recognised or valid head of claim. The claim for injury and any "inconvenience" all falls within an award for PSLA (Pain, Suffering and Loss of Amenity).
- I've attached the letter I received from them showing the inconvenience part
2. That your solicitors have advised you to accept "£X" when you clearly have ongoing issues with your back could be negligent in its own right. The warning sign was that you needed a scan. Your solicitors should have had your medical expert re-examine you after you'd had the scan so he could update his prognosis. It seems this hasn't been done. (Although you don't really provide enough info for me to give you an opinion about this).
- I prolapsed a disc in my back about six years ago, until the accident I wasn't really bothered by this, the solicitor told me I could arranged another medical following the results of the MRI, but I would have to meet the costs of this and in their view it was likely they would be unable to determine if the problem with my back was directly connected to the accident or the initial injury six years ago. To be honest the medical was a bit of a joke I told the doctor I was constantly taking pain killers, especially at night to get to sleep, yet he wrote I was fully recovered.
3. If you've accepted £X + £Y then you should have received a cheque for the full amount. However, what are your finding arrangements with your solicitors? Did you agree to forego a percentage of your claim in respect of costs? If not, you need the missing cheque.
- no idea how they are funded, I only used them as the insurance company said to use them to get the excess back.
£Y is quite small but sadly so is £X+200 for the pain I now get from my back hence why I'm pursuing the £Y
1. Defendant insurance companies don't make offers for "inconvenience". It's not a recognised or valid head of claim. The claim for injury and any "inconvenience" all falls within an award for PSLA (Pain, Suffering and Loss of Amenity).
- I've attached the letter I received from them showing the inconvenience part
2. That your solicitors have advised you to accept "£X" when you clearly have ongoing issues with your back could be negligent in its own right. The warning sign was that you needed a scan. Your solicitors should have had your medical expert re-examine you after you'd had the scan so he could update his prognosis. It seems this hasn't been done. (Although you don't really provide enough info for me to give you an opinion about this).
- I prolapsed a disc in my back about six years ago, until the accident I wasn't really bothered by this, the solicitor told me I could arranged another medical following the results of the MRI, but I would have to meet the costs of this and in their view it was likely they would be unable to determine if the problem with my back was directly connected to the accident or the initial injury six years ago. To be honest the medical was a bit of a joke I told the doctor I was constantly taking pain killers, especially at night to get to sleep, yet he wrote I was fully recovered.
3. If you've accepted £X + £Y then you should have received a cheque for the full amount. However, what are your finding arrangements with your solicitors? Did you agree to forego a percentage of your claim in respect of costs? If not, you need the missing cheque.
- no idea how they are funded, I only used them as the insurance company said to use them to get the excess back.
£Y is quite small but sadly so is £X+200 for the pain I now get from my back hence why I'm pursuing the £Y
Edited by rainagain on Monday 8th February 09:26
rainagain said:
Answering Nezquick's questions:
1. Defendant insurance companies don't make offers for "inconvenience". It's not a recognised or valid head of claim. The claim for injury and any "inconvenience" all falls within an award for PSLA (Pain, Suffering and Loss of Amenity).
- I've attached the letter I received from them showing the inconvenience part
2. That your solicitors have advised you to accept "£X" when you clearly have ongoing issues with your back could be negligent in its own right. The warning sign was that you needed a scan. Your solicitors should have had your medical expert re-examine you after you'd had the scan so he could update his prognosis. It seems this hasn't been done. (Although you don't really provide enough info for me to give you an opinion about this).
- I prolapsed a disc in my back about six years ago, until the accident I wasn't really bothered by this, the solicitor told me I could arranged another medical following the results of the MRI, but I would have to meet the costs of this and in their view it was likely they would be unable to determine if the problem with my back was directly connected to the accident or the initial injury six years ago. To be honest the medical was a bit of a joke I told the doctor I was constantly taking pain killers, especially at night to get to sleep, yet he wrote I was fully recovered.
3. If you've accepted £X + £Y then you should have received a cheque for the full amount. However, what are your finding arrangements with your solicitors? Did you agree to forego a percentage of your claim in respect of costs? If not, you need the missing cheque.
- no idea how they are funded, I only used them as the insurance company said to use them to get the excess back.
£Y is quite small but sadly so is £X+200 for the pain I now get from my back hence why I'm pursuing the £Y
Noted.1. Defendant insurance companies don't make offers for "inconvenience". It's not a recognised or valid head of claim. The claim for injury and any "inconvenience" all falls within an award for PSLA (Pain, Suffering and Loss of Amenity).
- I've attached the letter I received from them showing the inconvenience part
2. That your solicitors have advised you to accept "£X" when you clearly have ongoing issues with your back could be negligent in its own right. The warning sign was that you needed a scan. Your solicitors should have had your medical expert re-examine you after you'd had the scan so he could update his prognosis. It seems this hasn't been done. (Although you don't really provide enough info for me to give you an opinion about this).
- I prolapsed a disc in my back about six years ago, until the accident I wasn't really bothered by this, the solicitor told me I could arranged another medical following the results of the MRI, but I would have to meet the costs of this and in their view it was likely they would be unable to determine if the problem with my back was directly connected to the accident or the initial injury six years ago. To be honest the medical was a bit of a joke I told the doctor I was constantly taking pain killers, especially at night to get to sleep, yet he wrote I was fully recovered.
3. If you've accepted £X + £Y then you should have received a cheque for the full amount. However, what are your finding arrangements with your solicitors? Did you agree to forego a percentage of your claim in respect of costs? If not, you need the missing cheque.
- no idea how they are funded, I only used them as the insurance company said to use them to get the excess back.
£Y is quite small but sadly so is £X+200 for the pain I now get from my back hence why I'm pursuing the £Y
Edited by rainagain on Monday 8th February 09:26
Odd that they've chose to use the words "inconvenience" though.
FWIW, the JC Guidelines gives a valuation of up to £6,600 for a back injury which recovers in 2 years. So, I'd say you should have received an offer of between £3,000 and £3,500 for the "injury" part of it? That's what I'd have offered you had that been on my desk.
I also note the position re the old back injury. Seems to me like the expert has simply been of the view that you've aggravated your old back injury by a period of 12 months or so, which is fair (although I've obviously not read the medical report).
Nezquick said:
Noted.
Odd that they've chose to use the words "inconvenience" though.
FWIW, the JC Guidelines gives a valuation of up to £6,600 for a back injury which recovers in 2 years. So, I'd say you should have received an offer of between £3,000 and £3,500 for the "injury" part of it? That's what I'd have offered you had that been on my desk.
I also note the position re the old back injury. Seems to me like the expert has simply been of the view that you've aggravated your old back injury by a period of 12 months or so, which is fair (although I've obviously not read the medical report).
The report basically states what you said above even though as I mentioned already I told the Doc I now have to take pain killers regularly. I'll see what the solicitor's reply is and post it up. If it makes any difference when I accepted the £X+200 for my injury I did this by saying "I accept £X+200" I didn't say I accept £X+200 for my injury or I accept £X+200 in full and final settlement for my accident.Odd that they've chose to use the words "inconvenience" though.
FWIW, the JC Guidelines gives a valuation of up to £6,600 for a back injury which recovers in 2 years. So, I'd say you should have received an offer of between £3,000 and £3,500 for the "injury" part of it? That's what I'd have offered you had that been on my desk.
I also note the position re the old back injury. Seems to me like the expert has simply been of the view that you've aggravated your old back injury by a period of 12 months or so, which is fair (although I've obviously not read the medical report).
rainagain said:
The report basically states what you said above even though as I mentioned already I told the Doc I now have to take pain killers regularly. I'll see what the solicitor's reply is and post it up. If it makes any difference when I accepted the £X+200 for my injury I did this by saying "I accept £X+200" I didn't say I accept £X+200 for my injury or I accept £X+200 in full and final settlement for my accident.
OK but the implication is there though that you accepted the £X + £200 for your injury as that is the offer which was put to you for that head of claim. You just need to chase up your solicitors for the additional missing amount.
There seems to be some confusion by some posters on this, what I understand by this thread from the OP is: there is no "old back injury" only the current accident induced one, and second there is "permanent damage" which can only get worse in future, neither do I see where there is "full recovery" as stated in the solicitors letter.
Or am I not reading this correctly???
Or am I not reading this correctly???
No way should your solicitor be recommending acceptance of a settlement whilst you have an ongoing problem unless it clearly states there's nothing else that can be done to help you. What if surgery was required in future -the TP should fund that and any aftercare/ loss of earnings etc I don't see any account taken of your long term prognosis and what effect it could have on future loss of earnings etc. I might be wrong but from what's been said it doesn't look like they've had you best interest in the forefront of dealing with the insurers (maybe more interested in billing for their costs?).
I think you need to get better legal advice, you may have had it as far as the TP insurers are concerned but that's not to say you could not sue your solicitor for what appears to be the poor service/advice you've had.
I think you need to get better legal advice, you may have had it as far as the TP insurers are concerned but that's not to say you could not sue your solicitor for what appears to be the poor service/advice you've had.
SLCZ3 said:
There seems to be some confusion by some posters on this, what I understand by this thread from the OP is: there is no "old back injury" only the current accident induced one, and second there is "permanent damage" which can only get worse in future, neither do I see where there is "full recovery" as stated in the solicitors letter.
Or am I not reading this correctly???
Old back problem.Or am I not reading this correctly???
rainagain said:
- I prolapsed a disc in my back about six years ago, until the accident I wasn't really bothered by this, the solicitor told me I could arranged another medical following the results of the MRI, but I would have to meet the costs of this and in their view it was likely they would be unable to determine if the problem with my back was directly connected to the accident or the initial injury six years ago. To be honest the medical was a bit of a joke I told the doctor I was constantly taking pain killers, especially at night to get to sleep, yet he wrote I was fully recovered.
I'm confused because there are two issues and I'm not sure which the OP is really moaning about
Initial offer of X + y becomes X + 300 + y, that's accepted but only receives X +300
Or...
I've a buggered back and compo is too low and solicitor should have advised me different.
The way I read it, the back issues are spurious to the issue you've raised unless you're claiming negligence by the solicitor for recommending acceptance of an offer before the implications of the accident were known.
The first rule of complaining is to know what you're really complaining about.
Initial offer of X + y becomes X + 300 + y, that's accepted but only receives X +300
Or...
I've a buggered back and compo is too low and solicitor should have advised me different.
The way I read it, the back issues are spurious to the issue you've raised unless you're claiming negligence by the solicitor for recommending acceptance of an offer before the implications of the accident were known.
The first rule of complaining is to know what you're really complaining about.
I don't think there's any confusion. As I suggested above, and as was confirmed by the OP, the medical expert has simply given an opinion the OP has AGGRAVATED his old back condition by a period of 12 months.
That means that any pain beyond 12 months is not related to this accident but actually his previous back condition.
That means that any pain beyond 12 months is not related to this accident but actually his previous back condition.
Nezquick said:
I don't think there's any confusion. As I suggested above, and as was confirmed by the OP, the medical expert has simply given an opinion the OP has AGGRAVATED his old back condition by a period of 12 months.
That means that any pain beyond 12 months is not related to this accident but actually his previous back condition.
Ok. But that does kind of mean 90% of the original post is a bit irrelevant and just muddles the argument.That means that any pain beyond 12 months is not related to this accident but actually his previous back condition.
I was offered X and Y following an accident
We negotiated on X
I accepted X+300
Solicitor seems to have forgotten about Y
Just to clarify here’s a time line:
1. ~5 years ago prolapse disc in back, following physiotherapy this was resolved with no on-going symptoms
2. ~2 years ago in non-fault car crash, next day lots of pain from back
3. Had physiotherapy for this, but background pain remained
4. ~1 year ago went for medial organised by solicitor, told Dr was still in pain especially at night, was not like this until accident
5. Dr wrote up report saying crash aggravated old back injury, but now all ok
6. Offered £Y for my injury and £X for general inconvenience by third party insurance
7. Still in pain was referred by GP for first an ultrasound and then an MRI, found I have degradation of spine, this will only get worse as I get older, informed solicitor of this
8. Third party ups offer to £Y + £200 for my injury and £X for general inconvenience
9. I initially rejected this by email
10. Solicitor replies saying hard to determine if degradation of spine caused by original back injury or accident, I would have to pay for another medical (~£600) and it might say the same thing
11. I decided just to accept £Y + £200 for my injury and £X for general inconvenience
12. Cheque for £Y + £200 arrives, no cheque for £X
13. Inform solicitor of this, receive no reply
14. Contact solicitor again a week later
15. Yesterday receive email saying sorry cheque for £X will follow
1. ~5 years ago prolapse disc in back, following physiotherapy this was resolved with no on-going symptoms
2. ~2 years ago in non-fault car crash, next day lots of pain from back
3. Had physiotherapy for this, but background pain remained
4. ~1 year ago went for medial organised by solicitor, told Dr was still in pain especially at night, was not like this until accident
5. Dr wrote up report saying crash aggravated old back injury, but now all ok
6. Offered £Y for my injury and £X for general inconvenience by third party insurance
7. Still in pain was referred by GP for first an ultrasound and then an MRI, found I have degradation of spine, this will only get worse as I get older, informed solicitor of this
8. Third party ups offer to £Y + £200 for my injury and £X for general inconvenience
9. I initially rejected this by email
10. Solicitor replies saying hard to determine if degradation of spine caused by original back injury or accident, I would have to pay for another medical (~£600) and it might say the same thing
11. I decided just to accept £Y + £200 for my injury and £X for general inconvenience
12. Cheque for £Y + £200 arrives, no cheque for £X
13. Inform solicitor of this, receive no reply
14. Contact solicitor again a week later
15. Yesterday receive email saying sorry cheque for £X will follow
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