Hero Image

Road traffic accidents: should I deal directly with the other side's insurer?

by Shoosmiths

Share

Insurance companies have come under much criticism from claimants and claimant lawyers when they indulge - often aggressively - in the practice commonly known as 'third party capture'.

When their own client has been involved in an accident and may be at fault, there's a tendency to contact the innocent victim and offer help in dealing with making a personal injury claim.

To try to regulate this practice, the Association of British Insurers has launched a voluntary code of practice for third party assistance alongside a Third Party Assistance Claimant Guide which can be found along with a list of insurers who've signed up to the code.

The code covers claims relating to road traffic accidents, accidents at work, a trip or slip or other public liability accident claim, which involve an element of personal injury and the insurer transacts business in the UK.

Be aware of the following:

Initial contact

It's important to note that according to the code, initial contact with you by the other party insurer – more commonly known as 'third party insurer' – should only be by telephone/text; email or letter, and you shouldn't receive an unsolicited visit by the insurer at your home or hospital.

For clarity, although not in the code, the insurer shouldn't send an agent from another company out to you, either. If you make it clear to the third party insurer that you don't wish to deal directly with them, that should be respected, and they shouldn't contact you again.

Right to independent legal representation

You should be informed of your right to independent legal advice at all times, not just in the situations outlined in the code, such as for children, complexity over fault or injury, limited understanding of English.

I'd urge you to remember that you can often get independent legal representation on a no-win-no-fee basis, enabling you to safeguard your own interests which do not conflict with the third party insurer and their insured.

Injured?

If you've been injured, then under the code you'll find that without independent legal representation you'll have a medical appointment arranged by the third party insurer on your behalf by a medical expert, and it's worth noting that the claimant guide states you can choose your own medical professional.

I'd recommend you obtain a copy of any medical experts' CV to check their qualifications, area of expertise and experience.

What concerns me is that the code states that the medico-legal report will be sent to you as well as the insurer and you will have an opportunity to check it for errors. The code does not make clear whether they'll review it at the same time or wait for your approval first. 

If they don't wait, there may be information that's not factually correct, or information you don't wish to rely on which has come into their domain and could, in turn, affect their perception of you and the value of your claim for compensation. Until clarification is provided, I'd urge against dealing with the third party insurer direct.

An independent lawyer can arrange a medical examination on your behalf by a properly vetted medical expert, then review the medical report and send it to you alongside legal advice in order to safeguard your interests. Only when you've approved it for disclosure would it be released to the third party insurer.

Cost

The claimant guide states that by dealing with third party insurers direct, unnecessary legal fees are reduced, helping keep everyone's insurance premiums down. What you should be made aware of is that a fixed recoverable cost regime has been in place for many years on road traffic accident (RTA) claims, and legal fees are now fixed for low value RTA claims.

Provided there are reasonable prospects of success on your claim, an independent legal advisor can enter into a no-win-no-fee agreement with you so you do not become responsible for legal fees.

Offers on your injury claim

The third party insurer will place a value on your claim and this may be with or without (if the injury is for a few days) medical evidence.

What should be noted is that the code states that the offer should be discussed with you and followed up in writing, outlining reasons for the offer and providing relevant documentation such as medical reports. The offer shouldn't be withdrawn.

At this point you'll be reminded of your right to seek independent legal advice. I'd strongly recommend you do this to ensure the offer is reasonable. A lawyer is able to review not only the medical report, but also case law and injury award guidelines similar to your own injury, to see what the appropriate level of compensation will be, or alternatively advise whether it's necessary to undergo further investigation before an accurate valuation can be placed on the claim.

The danger of not involving an independent lawyer early on is that you might not be examined by the right type of medical expert or get the right type of advice concerning questions to go back to the expert with on key points such as cause, continuation and treatment of symptoms. The risk then is that the medical evidence could be insufficient. To safeguard you from under settling your claim or settling prematurely, it's always advisable to get independent legal representation at the outset to avoid complications later on.

Conclusion

The third party insurer will place a value on your claim and this may be with or without (if the injury is for a few days) medical evidence.

What should be noted is that the code states that the offer should be discussed with you and followed up in writing, outlining reasons for the offer and providing relevant documentation such as medical reports. The offer shouldn't be withdrawn.

At this point you'll be reminded of your right to seek independent legal advice. I'd strongly recommend you do this to ensure the offer is reasonable. A lawyer is able to review case law and injury award guidelines similar to your own injury, to see what the appropriate level of compensation will be, or alternatively advise whether it's necessary to undergo further investigation before an accurate valuation can be placed on the claim.

The danger of not involving an independent lawyer early on is that you might not be examined by the right type of medical expert or get the right type of advice concerning questions to go back to the expert with on key points such as cause, continuation and treatment of symptoms. The risk then is that the medical evidence could be insufficient. To safeguard you from under settling your claim or settling prematurely, it's always advisable to get independent legal representation at the outset to avoid complications later on.

The Association of British Insurers is trying to regulate a practice by third party insurance companies that has already received bad press. There are still some uncertainties in this code. The Financial Services Authority's Principles for business and Conduct of Business Sourcebook should form the basis of all insurer interactions with you.

As good as the code and claimant guide may sound the risks of not having legal representation are not set out for you. However, you'll see in the code/guide reference to strongly recommend/right to seek independent legal advice. So why not have independent legal representation at the outset?

Managing your claim with compassion

We put your needs first, and understand that compensation might not be your first priority.

Choosing Shoosmiths from Shoosmiths means you'll get advice from specialist lawyers with experience of managing all aspects of accident claims. As well as recovering compensation for your injuries, we'll arrange medical support to speed your recovery, while recovering expenses incurred as a result of your accident.

Our partnerships

Your dedicated case manager aims to help you through the whole process, tailored to your particular needs to ensure the best result.

We've established strong partnerships with treatment and rehabilitation specialists, medical examiners, forensic engineers, barristers, and other leading experts who may be needed during the lifecycle of your accident claim. We are also able to assist in arranging vehicle inspection, repair and vehicle hire.

Whether you've suffered a minor or a catastrophic injury – for example from whiplash to brain or spinal cord injury– you'll receive expert advice.

We're an approved firm under the personal injury accreditation scheme; we're certified to ISO 9001, which is the principal, internationally recognised standard for Quality Management Systems; and we have members of the Association of Personal Injury Lawyers.

We're also on the following specialist panels:

What next?

Please contact us on 03700 86 86 86 to talk about your claim. There'll be no cost to you for the initial discussions, and if we believe we can help you we'll arrange appropriate funding for your claim.

Once an initial discussion has taken place, and following a successful risk assessment, your lawyer will contact you and begin to pursue your claim in the best way possible to ensure a successful outcome.

Our offering

Our specialist teams act for clients of all ages and capacity who've been involved in a wide range of accidents. We offer:

Tell us what you think

All documents should be read and used in accordance with the terms and conditions. This document is for your general information only and is not a detailed statement of the law. It is provided to you free of charge and should not be used as a substitute for specific legal advice. If you require specific legal advice please contact client services on 03700 868 686.

Share

Contact our experts

Sorry, there are a few problems with the information you have entered. Please correct these before continuing.

Submitting

One moment please...

Thank You

Your submission has been received. We'll be in touch soon.