Legal Advice Needed - Part 36 Settlement Offer

[StillStuckInTheShed]

Hello, a bit of advice would be greatly appreciated. Posting here for traffic... (sorry...)

Background:

This has been ongoing for over 2 years now as it's been quite a significant case.

In 2021 DH was involved in a serious motorcycle accident which resulted in a severe complete degloving of the foot up to the ankle, numerous broken bones and a three week stay in the QE hospital where he underwent multiple surgeries where bones were fixed, metal plates where bones were lost, a large skin flap (plus muscle and veins) removed from his thigh (opposite leg to the injured foot) to reconstruct his foot and skin grafts.

He has been out of work since the accident (was let go last September as his employer couldn't continue to hold his position open and he simply could not do the job) it seems unlikely he will ever be able to work again due to ongoing chronic pain in the foot and in the site of the skin flap. He can walk/stand for no longer than a couple of hours before the pain becomes severe.

He is still awaiting medical appointments with plastics and limb reconstruction to enquire about the foot being amputated in March. The skin flap site is quite disfigured and expands pretty much the entire front of his thigh from the groin to just above the knee.

He has developed severe PTSD to the point he suffers frequent panic attacks, flashbacks and nightmares. We live on a fairly busy road and just thee sound of the cars going past the house will trigger an anxiety attack.

He was not at fault for the accident.

He has received a part 36 offer of settlement (250K) before all appointments and reports have been collected.

His questions are:

• What is a Part 36 Offer? Is it a tactic for the defence to save money?

• Why has the defendant put forward this offer before all appointments and reports have been attended and collected? DH is still awaiting Psychology and Limb reconstruction appointments and reports. It seems odd to receive a settlement offer before all the facts have been laid out.

• Is this a low offer considering DH's life has practically been destroyed (lost job, unable to work, chronic pain, now disabled, possible limb removal, PTSD)

we are well aware that the offer isn't a low offer at all but in his circumstances it seems low

• Can he negotiate the offer without going to court?

This has been a long post. Thank you if your still here and any advice would be greatly appreciated

good grief do you not have a solicitor involved?

op you need legal advice
proper legal advice from someone who has full picture

Yes he has a solicitor. However was just looking for advice as his solicitor is awaiting advice from a barrista. Could take a while...

On the info you have provided, get a solicitor asap - or if you have one, get a different one because they should have explained the implications of a Pt 36 offer to you as well as provided advice re evidence and quantum. Either party can make an offer to settle at any time - doesn't mean it has to be accepted. From what you've said about the injuries/case, I wouldn't accept anything without C&P evidence & legal advice, and you need a comprehensive work-up of past and future losses - no one should be handling a case like this themselves... In short - GET A SOLICITOR. There is much work to be done here by the sounds of it.

Just seen you have a solicitor - which is shocking - a decent solicitor shouldn't need advice from a barrister in order to advise you on the issues you have raised and they should be able to explain a Pt 36 offer to you in their sleep.

you need proper advice. From my (limited) experience, the first offer is always to get rid of you, and is always low. They bank on you not wanting to see it through the full legal process. It sounds like a lot of money, but the distress and physical injuries sound horrific, coupled with the loss of earnings. Wait for the legal advice and hang in there. Don’t accept anything without your barrister’s knowledge.

• What is a Part 36 Offer? Is it a tactic for the defence to save money?

It relates to Part 36 of the Civil Procedure Rules and comes with costs consequences once it expires after 21 days. Assuming the claim was issued after April 2023, if you fail to beat the offer at trial, you'll be liable for the Defendant's costs from the date the offer expired. It's a tactic to add risk to your DH in relation to continuing (if his legal advisor says not to accept and it's not beaten, they would usually get their ATE provider to pay the costs, as you were following their advice).

(In addition, that rule doesn't apply if you can prove exceptional circumstances as to why you shouldn't have accepted it at that point. Not having full medical evidence may be enough to be protected.)

• Why has the defendant put forward this offer before all appointments and reports have been attended and collected? DH is still awaiting Psychology and Limb reconstruction appointments and reports. It seems odd to receive a settlement offer before all the facts have been laid out.

To try to buy it off. They can see that it could be worth way more, so want to make a tempting offer to try to get him to go away. Even where they've admitted liability, their own costs of getting their own evidence, barrister's advice (maybe more than once), and going to trial will be through the roof, let alone also paying for your DH's legal costs on top. So it's an attempt to tempt your DH into going away.

• Is this a low offer considering DH's life has practically been destroyed (lost job, unable to work, chronic pain, now disabled, possible limb removal, PTSD)

No idea without being involved in the claim and seeing all the evidence.

If your DH does want to settle now, he can negotiate. That will usually be against advice, however, as he doesn't want the risk of under-settling, as once it's settled, that's it!

Solicitor here. You need to wait for the barrister's opinion. No one online can offer you advice on the value of your husband's claim. Presumably your solicitor has asked the barrister to respond before the offer expiry date (usually 21 days).

And yes, it's a settlement tactic used to try and settle a claim before trial, with potential costs consequences attached. Your solicitor should explain this to you.

In high value cases, you always work alongside a barrister in relation to value, evidence, prospects etc.

advice from his barrister? really?

yes @NoWordForFluffy
but the solicitor doesn’t refer to the barrister for advice

Basically all that @NoWordForFluffy has said.

I just wanted to add that if this is likely to be a substantial claim and you're struggling, it's worth asking the solicitor about an interim payment. It's an amount that will be well below the likely settlement amount to help with immediate needs. When you eventually settle, the amount would be deducted before you are paid as you've already had it.

They can explain the P36 and its consequences to her DH, but they absolutely will get advice on the value from a barrister. It's just how it works in high value cases. Sorry if you don't like it, but that's the way it goes!

I did when I was one. Depends on the case and the insurer but sometimes they wanted agreement from a barrister that an offer should be rejected.

They can explain the P36 and its consequences to her DH

the solicitor needs his barrister to do that

then there’s problems with the solicitor

OP

just wait for your solicitor to speak with barrister and go from there

don’t muddy the waters by referring to mumsnet

all the best

@NoWordForFluffy

the solicitor would prefer to wait for the barristers input in to the questions

but you feel confident enough to post answers?

I would imagine they'll book in a telephone conference and it will all be explained in detail in that.

You'd normally give advice about the consequences of the offer at the point you're advising on the offer. However, if her DH asks his solicitor, they'll no doubt explain the P36 rules without the other advice attached.

The solicitor should be able to explain what a Part 36 offer is and a quick google would also give you the bones. I would ring them in the morning to get them to explain it to you.

In the meantime the solicitor will be asking the barrister whether this is a good offer and how strong your case is i.e does the barrister think you would be awarded more than 250k if you went to court. Once he has this information he should inform you of your options.

Yeah. I've given generic advice about a Part 36 offer (which has specific rules attached to it) and why an insurer would try to settle a claim early. I've specifically declined to give case-specific advice.

I'm quite happy with what I've said. 😁 I agree re @flatmop's suggestion re an interim if you're rejecting the offer too.

Litigator here. Wait for Counsel's advice. Your solicitor is being prudent. The solicitor can explain the procedural intricacies of Part 36 as if it is an essay question at law school, but it isn't. The real question is merit, value and whether it is too soon to settle before all expert evidence and calculations complete. That's a complex question and something over which care should be taken. It is wise to consult, and unwise to shoot from the hip.

It's really impossible for anyone to advise on whether it's a good offer. For example, the value of the lost earnings element will depend on whether your DH was a high earner or on minimum wage.

It's not unusual for opponents to make an early offer just to try and put it to bed without having to pay for further medical reports and solicitors costs.

The consequences of a Part 36 can be explained without case-specific advice. Advice on settlement and the case-specific Part 36 risks need to come from somebody who knows the case and has valued it (or has valued it as well as they can at this stage).

A telephone conference would be usual after a large offer for the barrister to speak directly with your DH to see how he is and what's going on.

this sounds very sensible OP

good luck

It’s low, my uncle got just under 3m for a motorcycle accident around 20 years ago.’
he broke his neck and was in a head cage for 6 months.
he was told to hold out and he’d get more but he just wanted it over.
they care offering you that to stop the case, I’d hold out to be honest.