By Charlotte Morgan & Christie McCallum, Enable Law
Personal injury litigation can be a lengthy process, especially for serious or catastrophic injuries.
A typical personal injury claim can take on average one to two years to conclude. A catastrophic injury claim – for example a brain, spinal or other complex injury – can take three to five years to conclude, sometimes longer if the injured Claimant is a child.
There are a number of factors which can impact the length of a claim, which we will explain in this article.
Ultimately, it is prognosis that determines the length of the litigation; the more significant the injury the longer that takes to become established and its impact on future financial losses better known.
Most cases do not go to trial, but it may take the impending risk of trial to result in a settlement.
Initial stages
After a solicitor has taken the details of the accident which caused the injury, a formal “Letter of Claim” is prepared and sent to the Defendant They are entitled at least 3 months to investigate and provide a response but will often request additional time.
Often, the injured person is still recovering, in which case the solicitor will arrange an “Immediate Needs Assessment”.
This is carried out by a case manager usually with a physiotherapy or occupational therapy background.
This assessment will outline any assistance that the injured person could benefit from to optimise their recovery, and facilitates access to rehabilitation and therapies on a private basis.
Obtaining documentation
In the early stages of the claim, a solicitor will obtain a client’s medical records.
These requests should take one month, but unfortunately this varies by NHS Trusts and some requests are not fulfilled until many months after requesting the records.
Throughout the claim, additional records will also be obtained to assist in calculating the financial losses suffered as a result of an injury.
These may include tax records from the HMRC, employment records, or education records.
Again, these are third party requests and can take some time to be received.
Expert evidence
As part of litigation, a solicitor must obtain independent expert medical evidence on the injuries sustained.
This is an important step in the claim, as it confirms what injuries have been caused by an accident, any difficulties the client is facing as a result, and the likely prognosis going forward.
In cases with complex and multiple injuries that can mean instructing experts in numerous different fields of medicine.
It is likely that the Defendants will also want to get their own medical evidence.
Other experts may be needed to help establish liability in a claim. For example, in a road traffic accident, an accident reconstruction expert may be instructed in addition to medical experts.
The best experts in their fields often have substantial waiting lists, which can be in excess of a year.
Liability
One of the main factors that determines how long litigation takes is whether liability, which is responsibility for an accident, is accepted or disputed by the Defendant.
In some cases, there can be multiple Defendants who may blame each other.
The earlier liability is admitted, the more likely it is for litigation to conclude sooner.
The focus can then turn to considering the value of the claim and continuing with any necessary treatment and rehabilitation.
If liability is denied, then a solicitor will need to look at what evidence needs to be obtained to prove liability – such as speaking to independent witnesses or gathering expert evidence.
Often, we may need to instigate court proceedings to have the issue of liability determined by a Judge at a Trial.
Valuing the claim
In order for a solicitor to value a claim they need to have medical evidence on the injuries and details of past and future financial losses.
This can take many years to gather because a medical expert may advise a period of watching and waiting to see how recovery progresses before commenting on a final prognosis.
Quantifying future losses can be extremely complex as you must consider how the clients future will be adversely affected by their injuries.
For example, will they be able to return to work and if so, in the same role, earning the same as before or will their work and earning potential be affected.
Another key consideration is future care – is the injured person able to return to living independently or will they need assistance and if so, how much.
In a lot of catastrophic cases, those questions cannot be answered until several years into recovery.
Sometimes an independent living trial may be required, to see what support may be needed to allow someone to live independently after their injury.
Settling the claim
Even when a solicitor gets to the point of being able to value a claim, the Defendants will invariably take a different view on the value.
Negotiations between the parties may happen over a period of time to try and come to an agreement on the settlement value.
If the value cannot be agreed between the parties, the claim may need to go in front of a Judge for them to determine what amount of compensation is reasonable.
Other considerations
If a claimant is assessed as not having mental capacity, they may not be able to agree to a settlement. If this is the case, a Judge must approve any settlement reached both in relation to liability and the value of the claim.
A lack of capacity may also result in the involvement of the Court of Protection, to adequately protect the person without capacity’s interests.
Going through the Court of Protection to have a Deputy appointed can add further delays, but it is a necessary step.
As mentioned above, there are different points at which a claim may enter court proceedings. Once this happens, there will be a timetable set by the Court.
This can be advantageous if you are faced with a defendant who is slow to engage with the claim. However, it also means that steps must be taken in a particular order, as required by the Court, which can span over 1-2 years.
Additional Court hearings may also be required during that timetable, for example – to obtain necessary interim payments.
This will again require a period of waiting to receive a hearing date because Courts often have long waiting times for hearings.
Similarly, cases involving children often present their own challenges with experts having to consider the impact of injury on developmental trajectory, and long term deficits.
Case Study
An example of this process in action is our client, Jack. Jack was involved in a car crash in 2021 when he was a passenger and the driver lost control. Jack sustained very serious injuries; including a traumatic brain injury which left him without mental capacity, orthopaedic injuries and an injury to his heart.
His family approached Enable Law in 2022 to bring a claim.
Shortly after the claim was submitted to the Defendants but they denied liability.
This meant that Enable Law had to get disclosure from the Police, take statements from witnesses and obtain an accident reconstruction report.
Liability was eventually admitted in 2023 which then required Court approval, due to Jack lacking capacity.
An interim payment was received which allowed a multidisciplinary rehabilitation team to be appointed so that Jack could focus on rehabilitation.
In 2024 we obtained initial reports from a range of medical experts including a neurologist, neuropsychologist, neuropsychiatrist, orthopaedic surgeon, vascular surgeon, nephrologist and care expert.
These experts said that whilst Jack had improved, it would not be possible for them to provide a final prognosis until he had trialled living independently for 1 year to see how he coped, what level of support he needs and whether he is able to return to any form of employment.
The Defendants were not willing to give us additional funds to pay for this and so we had to make a Court application to secure further funds, which meant there was another delay waiting for a Court hearing date.
Once funds were secured, Jack was able to move into a flat at the end of 2025.
Jack will now live independently before the experts re-assess him and report again towards the end of 2026/early 2027. It is therefore anticipated that Jack’s claim may settle in 2027 or 2028.
This is a good example of how, due to a combination of factors, the most complex claims can take a long time.
However, taking the time will be in Jack’s best interests, as the claim will only be settled once we have the best possible understanding of what the future holds for him, ensuring that ensure that the compensation he receives will cover his needs for life.
Learn more about Enable Law at enablelaw.com
