I can still remember the Civil Procedure Rules coming into force back in April 1999 and hearing those around me stating that this has been the biggest shake up the legal industry is likely to see.
From a personal injury perspective there have of course been many more changes, such as the predictive cost regime, the MOJ Portal and now the expansion of the portal for EL/PL claims. At the same time, recoverability of success fees from a losing party has been abolished as have referral fees. In addition the amount a claimant can recover in respect of their legal representation has been substantially reduced.
A lot of these changes have been brought in on a sea of media coverage surrounding fraud and exaggerated claims. It must follow therefore that an insurer should properly validate every claim that is made and ensure that a claimant is genuinely injured and is not exaggerating: or so you would think…
A “pre-medical offer” is “…generally made without any real knowledge of what symptoms a Claimant is suffering with. As such the fact that these offers are made can actually encourage fraud and exaggeration.
The term ‘pre-medical offer’ has been around for quite some time. It is referred to when an insurer makes an offer to a claimant without sight of medical evidence. The offer is generally made without any real knowledge of what symptoms a Claimant is suffering with. As such the fact that these offers are made can actually encourage fraud and exaggeration.
There has been much debate of late as to whether or not it is appropriate to ban insurers from making pre-medical offers. Unfortunately, although being discouraged from making them, insurers are still free to do as they choose.
It is common practise for these offers to be made in low value claims (up to £5000.00) however, it is now more frequent to see them in higher value cases.
It is standard practice in higher-value claims to instruct a case manager, with a view to co-ordinating care and treatment, and with a view to preparing an initial needs assessment (INA). As well as identifying needs, the report also provides a lot of information for an insurer to understand the case they have to meet, and to put an adequate reserve in place.
Looking at it another way, it also provides a lot of information for an insurer to have a stab in the dark and make a pre-medical offer.
When dealing with a higher-value claim, it is very difficult from the outset to fully appreciate the true value of a claim, as your client may need extensive rehabilitation and/or surgery. Your client`s pressing need is for an interim payment so as they can avoid the worry of “how am I going to pay my mortgage”.
Claimants are in a vulnerable position and their primary focus is surviving financially whilst they recover.
Claimants are of course in shock and in a vulnerable position as they have been thrown into a world they do not understand and their primary focus is surviving financially whilst they recover. With that in mind a claimant who is presented with what seems like a very attractive offer, may be inclined to grab the money and run.
It is not uncommon to find yourself advising a claimant in these circumstances against accepting the offer. It is obviously a difficult position to be in when you cannot advise your client with any certainty that they are likely to beat the offer, as you are genuinely unable to quantify the same, as it is too early in the process.
There are certain insurers for whom this is standard practice and usually against a background of a refusal of an interim payment “as you have yet to serve medical evidence” or “whilst they investigate liability or causation further”. The irony being, before you can apply for an order to compel your opponents to make an interim payment, proceedings are required – and of course a medical report is necessary to issue those proceedings (CPR Part25).
In my opinion you should tread very carefully in the early stages of a claim and try to assess your opponent`s real intentions, obtain all the medical evidence you require before disclosing it, and/or considering whether you should allow your opponent access to your client to obtain their own reports.
About The Author
Tony Tierney is Legal Manager at Bott and Co. He has 21 years Litigation experience settling claims. Outside of work Tony enjoys cycling, he is particularly proud of raising over £10,000.00 for Cancer Research whilst cycling from Lands’ End to John O’Groats