Making a small claim

Small claim court for uninsured loss

If you have been in an accident caused by someone else, and the consequences are not great, then that is good, but it can still be frustrating.

We are talking about a case which the law calls a small claim. If there is not an injury worth £1,000, and the financial loss is below £5,000, you are in small claims territory. The classic situation is where your vehicle is damaged, and you have to pay for its repair, or you have paid your own excess. If your case falls into this category your legal costs cannot be recovered from the party at fault, so a solicitor is unlikely to help you without payment.

No legal cover policy we know of provides assistance in such a situation, simply because it is uneconomic to do so. These policies are designed to pay if the action fails, and are not designed to pay to pursue legal action.

Another frustration is that your own insurer may not chase the insurer of the person to blame. So lets say you have fully comprehensive insurance, someone knocks over and damages your bike which is legally parked. You claim on your own policy, and have to pay the excess to the repairer. Most people think their own insurer will recover the cost from the party to blame. It might surprise you, but many insurers are not interested. Their job is to insure you, not represent you, and chasing other insurers can be expensive.

The insurance companies used to operate a knock for knock agreement. They recognised the swings and roundabouts of accidents and blame, they knew it was expensive to chase one another for repayment of their expense, so agreed to swallow their own losses. This agreement was kicked into touch some years ago, but some still operate along the same lines. So in the example above, where the accident is clearly the fault of someone else, both you and your insurance company have paid out, and your premium will go up next year.

So, what are your options?

The best position is where Your Key has arranged repair or hire. Within this process your own expenses can be recovered. The benefit of credit hire and credit repair in such a situation is that the paying insurer wants to keep the cost down, so will try to ensure repair is quick, and the hire period short. In this case the expense is recovered direct from the insurer of the person to blame, leaving your insurance record and wallet intact.

If we do not arrange hire or repair, then you have to recover the cost yourself, and there are two approaches. One is called “third party capture” and the other involves making your own claim which may lead you to the small claims facility of the County Court.

Third party capture

Th einsurance company of the driver to blame may contact you to see if they can help. If they will repair your car or motorcycle, and make another available, then why not. Remember, the benefit of contacting the innocent party direct is the insurer gains control of cost. So be on your toes and make sure you do not get carried away with the helpfulness of the process, and do be sure you list all the expenses quickly. Your strongest negotiationg position is when you are agreeing repairs and are sitting in the courtesy car. You are costing the insurance company money at this point so they will pay attention. Submit your expenditure details too late and you may end up going down the small claims route below.

We do not think third party capture works when someone is injured, as then you must have independent legal advice. You can read about the pros and cons at Mark Thompson Law.

Bringing a small claim

Do not try to recover losses by telephone. The insurer will have a process based on paperwork. Using the telephone does not short circuit the process, as you talk to a call centre which might type a note on the computer file, but nothing more. Write a letter, keep a copy, and although formal, you are much more likely to get a reply this way. Check the website of the insurer you are writing to for a fax number.

We recommend writing to the person you hold responsible, and their insurer at the same time. Below is an example of the letter you should write, setting out all the relevant information. You will need to change the wording of the letter below to suit your situation. It is designed for writing to the person at fault only, but do send a copy for the insurance company, or send it direct to the insurer yourself as we recommend.

To

Defendant (name and address of person you hold responsible)

Dear Sir or Madam,

Re: Claimant’s full name (that’s you)

Claimant’s full address
I wish to claim damages in connection with a road traffic accident on (date) at (place of accident which must be sufficiently detailed to establish location)

Please confirm the identity of your insurers. Please note that your insurers will need to see this letter as soon as possible and it may affect your insurance cover and/or the conduct of any subsequent legal proceedings if you do not send this letter to them.

The circumstances of the accident are:-

(brief outline only)

The reason I am alleging fault is:

(simple explanation e.g. pulled out from minor to major road without looking, driving too fast)

The accident was reported to the police by (myself or name). I will obtain a copy of the police report if you do not accept what I say and agree you are wholly at fault. I will let you have a copy of the police report upon your undertaking to meet half the fee.

My vehicle (manufacturer, model, and registration) needs repair. The vehicle is currently at (and is incurring storage charges). I would like to give you the opportunity to inspect my vehicle and put forward your own proposal as to the work required and the method of repair. If you do not wish to take up this offer I will arrange for the repairs myself, and send the invoice to you for payment.

In the accident the following articles were damaged:

(detailed description, date of purchase and price – remember you are only entitled to cost of repair or value at time of accident).

A copy of this letter is attached for you to send to your insurers.

Finally I expect an acknowledgment of this letter within 21 days by yourself or your insurers.

Yours faithfully

We help many members with this type of claim. We have also advised on making a County Court claim which is your next step if the letter does not work. The process is not difficult, it does not require a solicitor, but it does require time and determination. Don’t be fobbed off, and use the letter rather than the phone so the insurer sees you know what you are about, and you mean business.

There is encouragement from the Guardian consumer rights man who brought a small claim against Carphone Warehouse.

There is some very useful guidance on the Government website by clicking here.

Let us know how you get on, and share your experience to help other members.

Good luck.

 

Please note that comments below dated before 2012 which refer to legal cover arrangements are now out of date. Please click here for an explanation.