How long will it take to settle my brain injury claim?
I thought it would be useful to write a series of blogs dealing with difficult questions that people ask when they are thinking about whether to make a claim for compensation following a brain injury. Following on from my previous blog: ‘How much compensation will I receive?’, I wanted to deal with another challenging question that I often encounter from people who are taking the first step in bringing a claim for their injuries: ‘How long will it take?’.
I understand why people ask this question – nobody wants to be in the position of having to pursue a claim, and they want the process to be over as quickly as possible.
At Bolt Burdon Kemp, our proactive approach ensures that claims progress swiftly and efficiently without delay. However, most serious injury cases, especially those involving brain injuries, typically take years rather than months to reach a settlement. This is because the claim needs to go through several stages before a settlement can be reached.
Here is a little more detail about the stages and the broad timescales involved in a claim.
Stage 1: Liability investigation – deciding who is to blame
In some accident cases, the preliminary investigation might not take long at all. For example, if you have been injured in a road traffic collision as a passenger where someone has already admitted responsibility and the vehicles involved were insured, liability for your injuries can be resolved relatively quickly (within weeks or a couple of months).
However, accidents are often more complex. Sometimes they occur without witnesses, or the other side may allege that you contributed to the accident and your injuries.
If you have been injured in a workplace accident, your employer may claim that you acted negligently despite having received proper training. In road accident cases, an ongoing police investigation can delay the provision of documents related to fault. These are just a few examples of how liability can become more complicated in accident cases.
If your case involves allegations of medical negligence, the preliminary investigation usually takes several months, unless the medical provider has already admitted fault. This is because your medical records need to be obtained and reviewed, and expert opinions from independent medical practitioners in the areas of medicine involved in your care need to be obtained. Often, the top-tier medical experts we engage have waiting lists for preparing medico-legal reports, resulting in a few months of waiting.
Stage 2: Pre-action protocols
If the preliminary investigations indicate that there are merits in continuing with the claim, it will usually follow a set of steps known as a pre-action protocol. The first step under this protocol is for us to send a formal Letter of Claim to the potential defendants, who will have a specific period of time to send a formal Letter of Response.
For personal injury claims, defendants have three months to respond, and for medical negligence claims, they have four months. However, defendants often ask for longer to respond, especially for complex claims.
Stage 3: Litigation
Depending on the defendant’s response to the Letter of Claim, court proceedings may need to be started. We aim to start court proceedings as soon as possible to avoid prolonging the claim unnecessarily.
Once the claimant sends the court documents to the defendant(s), the defendant has 28 days to provide their defence, although they often request more time. After the defence has been sent to the court, the court will set a timetable for the steps that both sides must take to reach a settlement if possible, and if a settlement is not possible, to get the case ready for trial.
If the defendant denies responsibility for your injuries, we will work towards proving liability. This usually involves obtaining and exchanging witness statements and reports from expert witnesses, as well as quantifying the claim. In some cases, the court may order a separate liability trial before quantifying the claim.
If the defendant accepts responsibility for your injuries, court proceedings will focus on determining the amount of compensation to be paid. Both sides will need to obtain evidence from expert witnesses regarding your injury, its implications for your current and future needs, and any other losses resulting from the injury. In complex brain injury cases, it is not uncommon for each side to rely on eight to 10 expert witnesses, with the court’s permission.
For complex brain injury cases, the court timetable for liability or quantum alone usually takes around nine-12 months.
For cases involving both liability and quantum, the timetable is more likely to be 12-24 months.
Once the trial date is set, it is unlikely to be changed unless there is a compelling reason. Therefore, if a case does not settle during the litigation process, the trial date becomes the end point.
Although it may not seem like it, I have tried to supply a concise explanation of the claims process
Litigation can be complex, and gathering evidence and working through the steps takes time, even with the most efficient practices.
We always strive to achieve the best possible outcome for our clients and never compromise on the quality of service we provide.
It’s important to note that you don’t have to wait until the end of the case to receive compensation.
Many of our clients require funds from their claim during the ongoing case to cover expenses such as rehabilitation or living expenses that would have been covered by their lost earnings.
We understand these needs and seek interim payments, applying to court if necessary, where we believe you are entitled to them.
So how long will it take?
Due to the complexity of the brain injury cases that our Adult Brain Injury team specialises in, settlements usually take at least 18 months, and more commonly two to three years. Some cases may take even longer, as each case has its own unique twists and turns.
It’s also worth mentioning that at any point during the case, either before or after starting court proceedings, either side can make an offer to settle.
If both sides agree to a settlement, the claim will come to an end.