You may have received calls like this at home or at work. A person calls you out of the blue and says that they hear you have had a car accident that wasn’t your fault.
If you agree to listen and say that this is true, you have had a car accident that wasn’t your fault, the caller might then say that you could well be able to claim compensation, no matter how tiny the accident.
What lies behind this is the notion of claims for minor damage to the car, and for injuries to yourself, particularly whiplash, can be made with impunity for any accident. And these claims are based on the notion that insurance companies just pay out of whiplash claims with only a minimum of evidence.
All this has come about because whiplash is very hard to diagnose by a GP. You say you can’t focus, that you’ve got headaches, couldn’t work and so on, and basically the GP has to take your word for it. So since the accident wasn’t your fault you put in a claim for it, and the money is paid up by the insurance company representing the driver who caused the crash.
What could go wrong?
Well, in fact everything, because the following true story concerns a lady who had exactly such an accident – it wasn’t her fault at all – and who was persuaded by a cold caller to make a claim against the other driver’s insurance company. It was a no-win no-fee claim, so there could be no loss to her.
Except, actually there could and there was. In the case I am going to outline below, which is a case in which I was personally involved, there certainly was a loss – it cost the lady making the claim £6000. Yes, there was no fee because she lost the case. But what the insurance company didn’t tell her was that if the case was lost, she would be personally liable for all the costs of the court and the expensive barrister hired by the insurance company of the driver who admitted he caused the accident.
No win, no fee is true. But it omits the fact that if you lose, you can end up paying the costs. In this case £6000.
The accident in question happened on a 3-lane roundabout. A truck changed lanes on the roundabout without indicating. The car in the middle lane swerved to avoid that truck, and then as a result of that swerve had a side-to-side scrape with the car on the inside lane. Both cars stopped, there was a scrape to the car in the middle lane, but nothing else. The drivers went on their separate ways, and a week later the lady driving the car that was on the inside line got the no-win no-fee call.
Her problem was that these days, contrary to popular belief, some insurance companies are resisting these whiplash claims, knowing that 90% of them are wholly or mostly invented.
In this case the driver of the car that caused the scrape (by trying to get out of the way of the truck) said he wanted to fight the case (as he didn’t want to lose his no claim bonus), and so his insurance company fought the claim and the case went to court.
In court the defending insurance company put up a barrister who is one of a dozen or so such people who do nothing but fight these whiplash claims. The lady on the no-win no-fee deal had a very junior barrister with very limited experience.
Throughout the build up, the lady who made the claim had been encouraged to increase the level of the claim. By the time she came to court she was claiming the need for a new child’s car seat, scrapes along the side of the car, physiotherapy and support from a psychologist for the trauma she had suffered.
The case lasted all day in court as largely the defence representing the driver who had caused the accident pulled the lady’s evidence to shreds by questioning her on every point of detail. As she finally admitted she had not attended all the physiotherapy or psychologist sessions, she had no receipt for the new child’s seat, her story of where she was going made no sense, she had taken her time to make the claim, and above all she was unprepared for the nature of the court hearing and the cross examination.
The driver who had caused the scrape in his efforts to get out of the way of the truck was clear and precise. He had reported the accident the next morning to his insurance company, he had taken photos of the scrape to the side of his car, he had not bothered to get it repaired as it was so minor, and above all his evidence was consistent and assured.
At the end of the case after a full day of hearing the judge stated that the lady’s story was inconsistent and untenable, and that he didn’t believe she had suffered the injuries or losses she had claimed. The claim for compensation from the insurance company for whiplash and associated issues was dismissed, and the judge criticised her for making the claim.
All of which might seem the end of it, except that the defence then rose and began a discussion on costs. The costs of the court, the costs of the defence barrister, the costs of the solicitor who instructed the barrister, and even the costs of the driver who openly admitted that in his effort to avoid the truck which was changing lanes, he had caused the accident. Yes he had scraped the lady’s car in trying to avoid a much worse accident which was not his fault, but he had, in law, caused the minor accident to the lady’s car. And he admitted that.
The case by the lady, now being lost, meant she had to face the bill even for his costs, and that was the cost of taking a day off work to attend the hearing, and his travel costs to get there. Not much compared to the cost of the court fees and the cost of the defence barrister. But another cost.
Added together these costs came to £6000, and that was the bill she faced.
To summarise, in this case “no win no fee” meant that if she lost the case, she could face ruin through the costs of the case. The “no win no fee” scammers who make these telephone calls never tell you that. It is worth to be cautious.