IFS AND BUTS

Legal cases are seldom straightforward and outcomes can be hard to predict, especially when there’s an injury involved.

QMy son was involved in a motorcycle accident which left him with a nasty fracture to his shin bones. His bones broke through the skin, and the A&E team were very worried about bone infection.

He has solicitors acting for him and there is an offer of £40,000 for his injuries, which has been made under a ‘part 36 offer’. The insurer has paid for everything else already.

His solicitors are saying that if my son does not have a bone infection then this is a generous offer, but if he does have a bone infection and at some later point the bone infection causes problems, which might include amputation, then we should not accept. The surgeon organised by the solicitors has said there is a small chance of a bone infection, but he will only know in the course of the next six months when the final test swabs will be analysed.

The downside to this ‘part 36 offer’ is that if we do not accept it, and in a few months’ time the surgeon says there is no risk of bone infection, somehow my son becomes liable for the costs of additional reporting and potentially some of the other side’s costs.

This is totally unfair. How can the solicitors let my son get into this sort of a problem? Is his solicitor negligent? Why should my son be at the risk of either a potential below-the-knee amputation or some sort of massive legal bill? Is it worth complaining to the solicitors’ professional body?

AWhile I appreciate you want the best outcome for your son, he is a young man making his own decisions. You cannot complain to anyone because you are not the client. Your son’s solicitors did not draft the Civil Procedure Rules.

An insurer can make an offer at any time pursuant to ‘part 36’ of these rules. A judge has discretion as to whether the consequences (which your son’s solicitors clearly set out) of the costs risk shifting to your son should happen.

Litigation is a rough game and I cannot see that your son’s solicitors have done anything wrong. Their advice is clear. They have said that your son should not accept the offer until he knows whether there is any residual deep bone infection.

Different solicitors have different styles. Personally, I would not have been keen to reveal that original orthopaedic report, but your son was pressing his solicitors for an interim payment and the insurers said that an interim payment was contingent upon release of that orthopaedic report.

The solicitors’ advice was that if the report was disclosed, it would give the insurers the opportunity to value and potentially make an offer prematurely. However, it was a decision your son made and the risk the solicitors warned about happened.

The solicitors have given advice which cannot be definite. They have said: “We can certainly argue that this offer should not have costs consequences because your medical condition is not stabilised, but I cannot guarantee the court will exercise its discretion in your [son’s] favour, so there is a risk that the costs of an updating report will have to come out of your damages as well as further costs to the time of acceptance, which I do not expect to be particularly substantial.”

And rather honourably, your son’s solicitors say that if he advises acceptance when the final report comes in, they will not charge for any work between now and acceptance. I do not know what else you think your son’s solicitors can do.

I think their advice is correct. Having read the medicolegal report from a surgeon whom I know to be straightforward and expert, he has said there is about a 5% chance of a particularly nasty bone infection, which does carry with it a real but small risk of amputation. Until the final tests are made, it will not be known whether this particular bacterium is still within the fracture site.

Your solicitor cannot give your son advice on medical consequences when even the surgeons do not know. Do not go interfering in this.

I cannot see any evidence that your son wants you to interfere. He is a grown man and his solicitors know what they are up to. Your son’s solicitor is a lawyer, not a magician, nor can he change the medical developments or rewrite the litigation rules. This is rough on your son but the insurers are entitled to use the rules to their perceived benefit.

For what it’s worth, most judges would be sympathetic, I think, on the question of costs (if it ever got before a judge) because there is one hell of a difference between a tib and fib fracture and an amputation for a young man.

My experience over 28 years of practice is that these bone infections very rarely lead to complications. I have seen it happen once and it resulted in an amputation. Leave your adult son to sort out his own affairs with his own solicitor.

Litigation is a rough game, says Andrew, and in this case, the legal advice is clear.