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

Yes they do. Especially in injury cases for quantum ie. the potential value of a claim and separately for liability too if disputed.

Hello all. Thanks for all the advice. You've all been extremely helpful.

He is currently awaiting for the advice from the barrista as his solicitor didn't want to advise without the barrista's advice.

We really were just wondering why are they trying to settle now before all medical evidence has been collected and if they were just trying to buy the claim off because it potentially was worth more. That's all really. These last few years have been a daze to be honest... I'm a bit scattered. Sorry if this makes zero sense.

No one would suggest you even consider settling whilst there is on going medical issues.

Just relax and I know this is easier said than done but these rarely get to go court although they can go on for years and years.

A payment in the meanwhile and all of his counselling and medical expenses etc should be covered and can be covered - speak to the solicitor about this. Also email the solicitor and say if there are any updates can you have a zoom call and be updates on exactly what they mean etc.

If you Dh is unlikely to work again and has 30 years left of working life this is potentially a huge claim. If his foot is amputated - Say 40 K over 30 years - that’s 1.2 million there in lost wages - without job satisfaction and promotion - and the impact on his pension etc He might be disabled permanently with physical and mental disabilities. The on going treatment, moving to somewhere quieter, a suitable car, compensation for pain and lack of hobbies and leading a ‘normal life’ could be in the millions - as you have to think long term.

They have calculations for these things.

I was offered 2 K after a car accident that hurt my back slightly and I was getting the odd twinge - I settled for 20 K about 2 years later - didn’t go to court but they changed and upped their offer every couple of months - it was stressful but 20 K back in 1995 was a lot of money!

The only thing That I can't see that anyone else has said ( And I agree that you need to wait for the barrister's advice which has nothing to do with the competence or incompetence of the solicitor) Is that you need to ask for an interim payment if they have admitted liability.

Would be an amount say half of what they've offered on account of any final settlement so he gets some cash now

He is currently awaiting for the advice from the barrista as his solicitor didn't want to advise without the barrista's advice.

It is important to be sure that he gets his coffee order just right 😄😉

Because if he isn’t working and it’s all stressful you might be willing to take the lump sum and disappear. So it’s cheap to offer it and prudent. You can pay off your mortgage and everyone happy. But then you have no come back in a year he had lost a foot and needs a psychiatrist over 10 years - 120 K is a drop in the ocean when suddenly it is 10 or 50 times that.

I started to type a message about this, but decided against it! 😬

Hopefully OP can take my gentle teasing in the spirit in which it was meant 😆

A bloody strong one I should think 😂

Even the best lawyers seek counsels opinion on complex cases. I think the solicitor is doing the right thing.

It was common for a number of P36 offers to fly about when I worked in PI donkeys years ago. Doesn’t mean you accept the first one (unless it genuinely represents the likely best case scenario).

PI barrister here. Your solicitor should be able to advise you on every point raised above other than the merits of the offer, which they have quite properly sought counsel's opinion on. You should not take advice from anyone else, every situation is different.

One small point - it is not correct to say that waiting for the prognosis to be finalised will lead to the adverse consequences of Part 36 being disapplied. The whole point of Part 36 is that it requires assessment of risk by both sides. That is why the barrister (not barrista - you find them in Costa!) has been instructed.

If you are struggling financially, please ask your solicitor about an interim payment. Good luck.

Given the extent of his injuries and the fact he may have his foot amputated, and he's lost his job, 250k certainly sounds low - but it depends on what his earnings were, how likely he is to be able to find and hold down another job/retrain/etc, it's very complex and that's why your solicitor will be checking with the barrister.

Definitely ask for an interim payment (which will then be deducted off your final settlement as you've already had it), 50k or 100k might be a reasonable request, given the details provided. Try not to burn through the payment quickly but use it whatever way would make life easier for him (and you), adaptations to the house, car, private therapy, etc.

Wishing you all the best OP.

If they explain the consequences before a barrister solidly says "god no, this offer is shit" (in more eloquent terms) there's a risk OPs husband might accept out of misunderstanding or fear. I've been on the receiving end of that from a client who had called after seeing the offer and have had to talk them down from the ledge. Obviously they settled for a LOT more later. I was very green and didn't think it would be so hard to convince someone to wait for counsel's opinion. Perhaps this solicitor is more experienced.

Arch.. My phone keeps auto correcting barrista to barrista.

NO! Barrister!

My only advice is not to ask about, talk about, or otherwise post on the internet if you have a pending legal case of any kind. Stick with actual legal advice and don’t open up the case to random comments that could be used against your case.

Sometimes auto correct comes up with some corkers!

Oh @StillStuckInTheShed don't apologise. You wouldn't believe how many emails I received about baristas.

For what it's worth, my absolute favourite clients were the ones dealing with serious injuries. Not because it was a big case. Just because they were always the nicest, most levelled headed people, despite dealing with the most horrendous circumstances. Life changing injuries knock you past anything you possibly think you could handle and seem to bring a strength nobody thinks they have. I was surprised and admired how so many clients could follow a serious conversation and make decisions when they had 100 other important and urgent things to worry about.

I said it might lead to the consequences being disapplied. Not that it would.

I've not yet had to test that in Court, but I'd definitely instruct a barrister to argue it.

I personally wouldn't tell the client we had a 'Part 36' offer, as that invites them to ask what it is. I'd tell them we had an offer and how much, and that we'd be getting Counsel's advice on it, likely in a telephone conference. I wouldn't take instructions from them until they'd had that advice.

Wait for the barrister's advice. Whether it is a good offer or not depends on valuation if the claim so that is what you need advice on. If there is no real risk of your husband not beating the offer at trial (or settlement) then it can be ignored.

Often first offers are speculatively low. The part 36 basis means the defendant gets costs protection if your husband doesn't beat the offer (ie the further evidence isn't helpful to him) though that is probably unlikely. Less scrupulously the defendant will be hoping the claimant is desperate enough for the money to accept a low-ish offer now, as trial could be a couple of years away.

The barrister or solicitor will be able to size H on making his own part 36 offer or offers but that will be easier for them to gauge with a full set of evidence.

I'm a solicitor but not an injury one.

I personally wouldn't tell the client we had a 'Part 36' offer, as that invites them to ask what it is.

The client has to be made aware of offers, a bit like estate agents having to pass on purchase offers even if they are rubbish.

You have a duty to tell them and the consequences of it. It is their claim not yours and you have no right to withhold anything from them.

You've totally and utterly misunderstood.

I wouldn't initially tell them it was a Part 36 offer, as they could ask what it meant and, as @flatmop said, they could get spooked / scared / panic. I would tell them there was an offer, valid for 21 days, and that we'd get counsel's advice. During that advice conference, counsel then explains about the Part 36 offer and what its consequences are, before going on to give specific advice. This conference would take place ASAP, well within the 21 day validity period.

No withholding at all. Just giving all the advice in one go.