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The defendant’s insurance company have admitted and then withdrawn liability for an accident. Are they allowed to do this?

Signed DocumentDear Brian

I had an accident and brought a claim. The insurance company for the other side admitted responsibility for the accident and our side proceeded on that basis. However, my solicitor now tells me that the insurance company want to withdraw their admission of liability. Are they allowed to do this?



Dear Jennifer

There are circumstances when an admission made before proceedings have been commenced can be withdrawn and circumstances when it cannot. Unless the parties agree to it being withdrawn, the Court has to make a decision and will have to weigh up whether it would be right to allow it. Factors taken into account include whether new evidence has come to light which was not available when the admission was made, whether there would be prejudice caused to the Claimant if the admission was withdrawn or more prejudice to the person seeking to withdraw the admission if the application was refused, the stage at which the application to withdraw is made (has it been made promptly or very late in the day?) and the prospects of success of the Defence if the admission is withdrawn. If the admission was made after careful consideration of the available material and a reasoned decision was made based on that material, there would have to be a very good explanation why the admission should be withdrawn.

Brian Barr

Can we make a medical negligence claim if the incident occurred more than 3 years ago?

Dear BrianBusiness woman typing on keyboard

My Uncle had a triple heart bypass four years ago and, as a result of what we believe was negligence by the hospital, his brain was starved of oxygen and he has gone on to develop severe dementia.

Can he bring a claim against the hospital despite the fact that the operation was longer than three years ago?



Dear Tracey

Your question relates to what we call the Limitation Period. There are various limitation periods and the limitation period for bringing a claim for personal injury is usually three years from either:

  • The date on which the cause of action occurred (in your case, this is the date on
    which the negligent act happened)
  • The date of knowledge (if later) of the person injured (see below)

There are, however, exceptions to this rule. The exception that could apply to your Uncle is the rule for “protected patients”. Patients are treated as “protected”, i.e. having a disability, when they are of “unsound mind”. This is where they are incapable of managing and administering their property and affairs. This would obviously be the case for your Uncle as he is suffering from severe dementia. If your Uncle became of “unsound mind” immediately following and as a direct result of the negligent act on the part of the hospital and he will continue to be of “unsound mind”, then the limitation period will never run and it will be worthwhile to investigate his claim.

However, if your Uncle did not become of “unsound mind” until a later time following the negligence, or if he was of “sound” mind for a period following the negligence, the limitation period will run from the date of the negligence in the usual way.

In any event, it is a good idea to go to see a Solicitor as there are certain circumstance when the Courts will exercise their discretion and allow a person to bring a claim outside of the time limit.


Twitter, Facebook and Lawyers

These days, anybody who is anybody has a Twitter account or is a member of Facebook, LinkedIn or Youtube. Social network sites are very much in fashion and for many of you who are stuck at home more than you would like, they are a real boon. You can keep in contact with fellow sufferers and other members of the planet easily and they are a great fun, instant method of communication.

They are also a great way to wreck your accident or insurance claim or claim for DWP benefits. I have written and spoken on many occasions about how insurance companies are happy to pay the cost of a few days’ surveillance.  It is a modest amount to pay to challenge a significant claim for care, employment or accommodation.

Social network sites and film sites like YouTube make it easier and cheaper for the DWP and insurers. They just have to look up the claimant and see what an active and lively social life he or she says that they are leading. Why should insurers or the DWP believe that you need lots of care or are unable to work when you are telling the world on your Twitter page that you are happiest when you are living it up “wid the boyz!”?

The Daily Mirror carried an interesting story on 22 August 2010. It was about a claimant seeking massive damages after an incomplete spinal cord injury. The care regime alone was expected to run to fortunes, but photographs posted of the claimant enjoying a lively social scene on holiday combined with a tip off from a nasty neighbour resulted in literally millions of pounds being wiped off the value of the claim.

You must remember that any case where the symptoms appear disproportionate to the initial injury attracts attention. Chronic pain cases are the perfect example. Sceptical insurers and those protecting DWP purses just cannot believe that people are suffering as badly as they say they are. If those same people then boast of a busy social life and post photographs or films to prove it,  attitudes will inevitably harden, perhaps to the extent of criminal prosecutions.

Let us just imagine this piece of cross examination:-

Barrister – “Would you say that you are an honest person?”
Claimant – “Certainly I am”
Barrister – “Would you always give an accurate picture of your disabilities?”
Claimant – “Oh yes”
Barrister – “Are these extracts from your Facebook page?”
Claimant (sheepishly) – “Yes, they are”
Barrister – “Do you have a very busy social life then?”
Claimant – “No I do not – what I have put here is mostly not true”
Barrister – “But you have just told the Court that you are an honest person.”

Why give the Defendants “a free hit”? It may well be tempting to exaggerate or fantasize about a life that you wish you had, but it makes no sense at all to wreck your claim in the process. You need that money to support you. Please, do not toss it away. If you have put up anything on Facebook or similar which is indiscreet, please check over it immediately and take it down as fast as you can.

This will still not stop the Defendants obtaining their DVD footage, but we can generally tackle that and I would be happy to discuss it in a further article. The social network and film sites are another phenomenon again. We are not trying to protect fraudsters here, but we do want to ensure that naïve claimants (and that can include people claiming benefits from the DWP) are properly protected.

I have a Critical Illness Insurance Policy but the insurers will not pay out


I have bad Fibromyalgia and not been able to work for twelve months.  I have a Critical Illness Insurance Policy but the insurers will not pay out.  They say that Fibromyalgia is not one of the named illnesses in the policy.  Can I claim?


Fibromyalgia may not be a named illness, but these policies usually pay out for total permanent incapacity or disablement.  Whilst nobody wants your Fibromyalgia to be totally or permanently incapacitating, the test is not always as demanding as it sounds.  Generally it means that you will probably not be able to follow either your own occupation or any occupation (depending on the definition in the policy) until your normal retirement date.  If you feel that you satisfy that criteria you will have a good arguable claim for a full payment under the policy.  You will, however, probably need the support of a Consultant who will say not only that you have Fibromyalgia, but you probably will not be able to work again.

A word of warning.  All these policies are different.  It really depends on how the policy defines total and permanent incapacity/disablement whether you come within the definition.  If you are in any doubt, a good solicitor should be able to help you interpret the policy, although obviously he will need to know how bad your Fibromyalgia is and whether or not you can do the various tasks unaided which may form the basis of the definition.

The above question originally appeared in Fibromyalgia Family Magazine

If you are If you are making a claim, check whether you have legal expenses insurance

Question: I have heard that litigation can take years, but I have had to give up my job and am having money problems. Is there anything I can do?

Answer: If you are making a claim, check whether you have legal expenses insurance. It may be part of your buildings cover or house contents cover. If not, your Solicitor may be willing to take on your case on a Conditional Fee Agreement (“no win no fee”) basis. Your Solicitor may also be able to secure an interim payment for you, although in a post-traumatic fibromyalgia case this is likely to be modest.