Personal injury litigation solicitor preparing court case for accident compensation claim

Personal Injury Litigation: When Claims Go to Court & Choosing the Right Litigation Solicitor

If you are making a personal injury compensation claim, it is important to understand what happens if your case does not settle and needs to go to court.

While most claims are resolved without a trial, the strength of your case often depends on how well it is prepared for litigation from the outset.

This guide explains what a litigation solicitor does, when a claim goes to court, and how to choose a solicitor with the right experience to maximise your compensation.

Table of Contents

What is a litigation solicitor?

A litigation solicitor is a lawyer who represents either a Claimant or a Defendant in legal disputes that may be resolved through the courts.

In a personal injury claim, you are the claimant, and the person or organisation responsible for your injury is the defendant.

If liability is denied or a fair settlement cannot be reached, your claim may proceed to litigation, meaning court proceedings are issued at court.

When does a personal injury claim go to court?

The vast majority of personal injury claims will settle prior to the need for court action. The law provides extensive procedures before court action should be considered. These are set out in what is known as Pre Action Protocols.

However, should there be a dispute on liability (who is at fault) or on quantum (how much the claim is worth) then a Claimant solicitor may be forced to take your claim to court when:

  1. The other party denies responsibility for your accident.
  2. There is disagreement about the value of the claim.
  3. The insurer refuses to make a reasonable offer.

Court action is both an expensive and time consuming step. Hence why the law tries to encourage settlement prior to court action.

Claims Tend To Settle Before Trial

The majority of claims issued at court will settle long before trial.

Typically your solicitor will initially deal with an insurance company – but once issued at court, Defendant solicitors will be instructed.

This will often result in a fresh set of eyes with legal knowledge looking at the strength of your claim – typically resulting in a quick reasonable resolution.

If no settlement can be found after proceeding in court – the last step will be the trial in which a judge will hear the evidence and decides who wins and who loses the claim.

Importantly, the ability and willingness of your solicitor to take a case to court often leads to stronger settlement offers from insurers.

What is the expertise a personal injury litigation solicitor should have?

There is a great skill in preparing a claim for court and arguing the claim. Many lawyers hold themselves out as litigation solicitors, but may not have taken very many claims to trial.

A good personal injury litigation solicitor will have had many claims go to trial and reached a successful outcome for the Claimant. Not only winning the claim, but also recovering the correct amount of compensation.

A strong litigation solicitor will:

  1. Prepare your case thoroughly from the outset.
  2. Gather and present detailed evidence.
  3. Be a strong advocate (able to argue your claim in various court hearings).
  4. Have tactical awareness of different court steps that can be used to put pressure on the Defendant to settle.
  5. Be prepared to take your case to trial if necessary (many claims will settle on the door of the trial).

Insurance companies are more likely to make fair offers when they know your solicitor has real court experience.

Preparing Your Claim for Trial from the Start

Personal injury claims are inherently complex.

Your solicitor (from the outset of your instructions) should prepare your claim as though it will have to go to court (even though this is rarely necessary).

For the claim to settle at the correct sum of compensation – your solicitor should have left no stone unturned and included all your correct losses supported by evidence.

Your solicitor needs to instruct other experts to produce reports to support your claim, such as medical experts, engineers, etc. The instructing and understanding of such reports is in itself an involved skill.

How does court action for personal Injury claims differ by value and complexity?

The value of your claim often determines the level of expertise required.

Small claims track

Typically lower value claims are dealt with in the Small Claims Court. These are more straightforward and may not require extensive litigation experience.

The small claims court process is generally set up for Claimants to make a personal injury claim on their own behalf. Solicitor will rarely be involved as generally there is an inability to recover legal costs – even if your claim is successful.

Fast track claims

Moderate value claims that require structured evidence are dealt with in the County Court.

These are often complex and require an experienced personal injury litigation solicitor to achieve the best results

Multi-track (higher value claims)

Higher value or complex claims are allocated to the High Court. Your solicitor needs significant expertise to ensure your claim is successful.

Therefore, choosing a solicitor with strong litigation experience and a proven track record is not only important, but essential.

Personal injury compensation litigation lawyer arguing case to judge in court
Personal Injury Compensation Litigation Lawyer

Do you need an experienced personal injury litigation solicitor to run your claim?

In practice, having a solicitor with litigation experience can significantly influence how seriously your claim is treated from the outset.

Complications can always arise when such expertise is essential, such as:

  1. Liability is disputed.
  2. Your injuries are serious or turn out to be more complicated than initially anticipated.
  3. Your claim is of high value.
  4. The other party or their insurer is making too low an offer to settle. 
  5. Your case can only be satisfactorily resolved by taking it to court.

Even in straightforward claims, a solicitor who understands litigation will prepare your case more effectively.

In most personal injury claims, the general rule is that the losing party pays the majority of the winning party’s legal costs. Your risk of paying the Defendant’s costs should you lose is limited – but there are various protections that your litigation solicitor will likely have put in place, such as:

  1. After the event insurance (generally associated with no win no fee agreements).
  2. Before the event insurance (such as household contents legal protection cover).

However, there are important exceptions, particularly for small claims..

Because of these funding options, there is usually limited financial risk in pursuing a personal injury claim with a litigation solicitor.

Frequently Asked Questions

What is a litigation solicitor?

Do all personal injury claims go to court?

When is it essential to have a personal injury litigation solicitor?

Will going to court increase my compensation?

Summary

Most personal injury claims settle without going to court. However, the strength of your claim often depends on how well it is prepared for litigation.

Choosing a solicitor with the right litigation experience can improve your chances of success and thus ensure you receive the correct level of compensation.

Next Steps

See our selecting a personal injury solicitor guide – to see how to check the expertise of a solicitor to help you make your claim.

If you are unsure whether your claim may require litigation – see our specialist solicitor free help options.

You can find out about your options and ensure your case is handled correctly from the start.

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