What Happens If I Lose My Claim? 

Unfortunately, you can never be sure that your personal injury claim will succeed. Court proceedings are inherently uncertain, and the nuances of a case can be such that it ultimately fails even where those with similar facts have succeeded. 

Before you issue a compensation claim, your personal injury solicitor will review the facts of your case, evaluate the evidence, and advise you on the merits of your position.

Most personal injury solicitors are experts in their field, and their vast expertise and experience of cases similar to yours will enable them to evaluate your claim’s likely success swiftly and accurately. 

Most personal injury claims are funded under a conditional fee agreement, also known as no win, no fee arrangements.

Under this type of arrangement, your solicitor only gets paid if you win your case. Accordingly, a solicitor accepting your claim on a no win no fee basis usually indicates that they expect you to win.

Even apparently strong personal injury claims can encounter difficulties that reduce their likelihood of success at trial.

Examples of the types of issues that sometimes arise include the following:

Personal injury claims are subject to strict time limits known as ‘limitation periods’. Usually, the limitation period is three years from when your accident occurred or the date on which you became aware of the injuries caused by it, if not immediately apparent.

If you have not issued your claim by this date, you will be barred from doing so, regardless of its merits. Accordingly, it’s essential to take legal advice as soon as you suspect you may have a personal injury claim to avoid falling foul of the limitation period.

To succeed in your no win no fee personal injury claim, you must prove that the defendant was to blame for the accident that caused your injuries.

Without evidence to support your assertions, you may face an uphill battle convincing a court of the truth of your position or persuading the defendant to put forward a settlement offer. The defendant is the legal term for the person or organisation you are claiming against.

The types of evidence that can be helpful in supporting your case include:

• Witness testimonies from those who saw the accident
• CCTV footage
• Photographs

However, if you don’t have this evidence, don’t panic. Your personal injury solicitor will assist you in collating anything necessary. 

To be liable for negligence, the defendant’s actions must have caused the harm you sustained.

If the harm would have occurred anyway, your claim will fail.

For example, in medical negligence cases involving delayed treatment, the defendant will not be held responsible for the harm the claimant sustained if they can prove that it would have occurred even with timely treatment.

A major part of your evidence in support of your personal injury claim will be your own account of what happened and how the resultant injuries or harm have affected you.

This evidence will be given by way of a ‘witness statement’. It can be tempting to exaggerate the truth in a witness statement in an attempt to bolster your case. However, it’s essential that you are entirely honest in all aspects of your evidence. 

Your personal injury solicitor and those acting for the defendant or their insurers will gather various evidence, including medical reports and witness accounts, to paint a complete picture of events and gain an understanding of the harm you sustained and your prognosis.

If your witness statement is at odds with that evidence, the defendant will undoubtedly draw the discrepancies to the judge’s attention and use them to attack your credibility.

Even seemingly minor transgressions can prove fatal to your case since once a judge considers you an untruthful witness, your entire testimony is called into question.

In worst-case scenarios, your personal injury solicitor may feel professionally compromised and unable to continue representing you. 

Sometimes, a claimant can be partly to blame for their accident. This is known as ‘contributory negligence’. A simple example of contributory negligence in a personal injury context is when a claimant was injured in a car accident caused by the defendant, but their injuries were more severe because they weren’t wearing a seatbelt.

You can still bring a personal injury claim if you were partly to blame for your injuries, but the judge will likely reduce the amount of compensation they award to reflect your own involvement.

Even if your case has apparent potential difficulties, you should still seek legal advice on your position. Your personal injury solicitor may be able to devise a strategy to overcome them or mitigate their impact.

Furthermore, very few personal injury cases proceed to trial. The Courts expect the parties to seek an amicable settlement of the issues and resort to litigation only as a last resort.

Accordingly, unless the problems with your claim are such that it is bound to fail, your solicitor may accept the case with a view to negotiating an early settlement. 

If you lose your personal injury claim, you will not receive any personal injury compensation. However, unlike in most court proceedings, unsuccessful personal injury claimants are largely protected from liability to pay the other side’s legal costs.  

The usual costs rule in litigation is that the ‘loser pays’. This means that the unsuccessful party must pay the legal costs incurred, including court fees, by the other side as well as their own.

This potentially significant liability can be a cause for concern for potential claimants, some of whom are put off pursuing their claims as a result of the costs involved, should they lose.

There is a very strong moral justification for a legal system that ensures anyone who has been injured through someone else’s negligence can seek compensation regardless of their financial situation, without the worry of facing a hefty costs bill hanging over them.

As a result, the usual costs rules are altered in personal injury cases by what is known as Qualified One Way Costs Shifting.

Under this rule, a claimant does not have to pay the defendant’s legal costs even if their claim fails, save in specific circumstances, such as where the claimant has acted unreasonably.

Your personal injury solicitor will explain how Qualified One Way Costs Shifting works and ensure nothing you do invalidates your entitlement to rely on it, or claim compensation.

In addition, most personal injury solicitors represent their clients on a no win, no fee basis. Under most no win, no fee agreements, the claimant only has to pay their solicitor’s fees if they win, at which point they must pay the amount detailed in the agreement.

That sum cannot be more than 25% of the compensation awarded.

Your personal injury solicitor will explain the terms of their no win, no fee agreement to you, and it’s important to take the time to understand them before you sign.

Qualified One Way Costs Shifting coupled with a no win, no fee arrangement means there is very little financial risk to you in pursuing your personal injury claim, provided you act honestly throughout your case.

If you win, you will receive compensation, and the defendant will pay your legal fees. If you lose, whilst you will receive no compensation, your exposure to legal costs, both your own and the defendant’s, is extremely limited.

Working with experienced personal injury solicitors can greatly increase your chances of success and securing the compensation you need for peace of mind that your accident will not jeopardise your and your family’s financial well-being. 

To find out more about making a personal injury claim, call for free on 0800 234 6438 today, and speak with an impartial, trained legal advisor.