Intermediate track injury claims: the rise of early settlement offers

Following the introduction of the Intermediate Track on 1 October 2023 for injury claims valued between £25,000 and £100,000, defendants have adopted novel litigation tactics. The aim of these tactics is often simple: to end litigation early and reduce the damages and legal costs they may have to pay.

One tactic that I have encountered is the use of early pre-medical offers (Link to AG Article on pre-med offers: https://anthonygold.co.uk/insight/pre-med-offers-risk-versus-reward/#:~:text=These%20offers%20are%20usually%20made,more%20on%20larger%20value%20claims). The majority of these offers are not made pursuant to Part 36, meaning that they do not have the same costs consequences or risks. Instead, the offers are straightforward and tactical time limited offers; akin a ‘take-it or leave-it’ statement from the defendant.

The timing of these early offers appears to be a key consideration for defendants. These offers will often be presented when a client’s recovery reaches a significant milestone, such as returning to their pre-accident job following a period of sick leave or being discharged from the care of their NHS consultant. In Intermediate Track cases which tend to be less complex, defendants will view these milestones as indicators of a positive recovery, often pointing out the positive facts when making an offer. However, the future risks associated with an injury, such as the risk of future deterioration or recurrence of symptoms, will often be unknown; it is here where expert evidence becomes crucial. Further, the true impact of an individual’s injuries on their life (both in the past and into the future) cannot be accurately ascertained simply by observing a recovery milestone, and a defendant’s justification for making an early offer is often superficial.

If an early offer is made, the role of the solicitor is to assess and estimate the value of a claim based on the evidence obtained at that stage, and to apply their expertise and experience in order to advise whether the offer is a reasonable one. This is often a tricky exercise as a client may be part-way through recovery with no clear prognosis. The offer may also have been made at such an early stage that evidence in support of other financial losses such as care, travel, and treatment (both past and future) is yet to be obtained. As a result, these offers can lead to stressful periods for clients, who may need to gather documents quickly to be assessed by their solicitor.

Whilst medical evidence is key in injury litigation, in less complex cases where the prognosis is simple, a well-pitched offer can be tempting for a client, representing an opportunity to move on from the accident. It appears that defendants have realised this and are making offers that are equal to or exceed what a client could reasonably expect to be awarded by a Court.

Ultimately, the decision on whether to accept, reject, or negotiate an early offer is for the client. However, this difficult decision is one that must be made with careful advice and support from their solicitor. It boils down to what a client values more, certainty over the damages they receive, or the prompt settlement of their case for a reasonable sum. In cases where clients value prompt settlement over certainty, negotiation using reports obtained through rehabilitation programmes and NHS medical records is a viable path. Negotiating early offers in these circumstances allows clients to agree on a settlement they feel comfortable with, even without expert evidence. If a defendant is unwilling to negotiate, the case can proceed with the gathering of expert medical evidence.

If an early offer is made, it is important that clients do not feel rushed into making a rash decision which may have lasting consequences. Every case is unique, and with the right advice, clients can weigh the risks and opportunities posed by an offer clearly. The solicitor’s role is to help clients make the best decision based on the evidence and individual circumstances of the case — whether that’s negotiating a fair early settlement or building a strong case through obtaining expert medical evidence.