Mr. Lilian Madu, LL.M., is a personal injury lawyer at ELFI Letselschade in Rotterdam, Netherlands. She has written a blog post that provides a general overview of the options for starting a lawsuit in personal injury cases.
If someone has suffered personal injury, it may happen that the party responsible for the damage does not want to acknowledge liability. In that case, you can start a partial settlement procedure with the help of a lawyer. This is a judicial procedure that was specifically created for personal injury cases. The judge will decide whether the other party is liable. If you lose the procedure, you do not have to pay the other party’s legal costs. There is no risk of a legal costs award in the partial settlement procedure, so there are few barriers for personal injury victims to start a lawsuit. If you win the lawsuit, the other party will have to pay the lawyer fees associated with the partial settlement procedure to your lawyer.
But what if liability has been acknowledged by the other party? In general, it is preferable to first reach an agreement with the other party on the compensation. Sometimes this does not work and you and the other party cannot agree on certain damage items. In that case, you can also start a partial settlement procedure. The court will then make a decision on the disputed points, so that the parties can continue negotiating afterwards.
When the court makes a decision in a partial settlement procedure, you should see this as a kind of interim decision. The intention is that the parties will continue to negotiate with each other after the court’s decision, until they reach a final agreement on the compensation.
In a judicial procedure, you will generally have to prove your position. This can be done, for example, by written documents. Sometimes cases are too complex for a partial settlement judge. For example, if experts have to be appointed or witnesses have to be heard to answer certain questions. In that case, a “normal” civil procedure must be started. Such a “normal” civil procedure is called a trial procedure. A judge in the trial procedure can make a decision on the entire dispute. This means that a judge in the trial procedure can make a decision on the final, total compensation. After this decision, the parties do not necessarily have to continue negotiating together. A trial procedure does, however, carry the risk that you will be ordered to pay the legal costs if you are largely found to be in the wrong. The risk of a legal costs award, of course, does not exist when conducting mutual consultations with the other party. However, even during this mutual consultation, you will have to make everything plausible with evidence.
In personal injury cases, it is also possible to start an urgent court case. It may happen that a personal injury victim urgently needs an advance on his compensation, for example because he can no longer work due to his injury and can no longer pay his fixed costs. The liable party (usually an insurance company) refuses to pay this advance. An attorney can then start an urgent court case on behalf of the victim. Such an urgent court case is called an injunction. Within a few weeks, the case will then come before the judge. An injunction can also be started when the party responsible for the injury has not acknowledged liability. But be careful! In an injunction, you will have to prove as much as possible with evidence that you are entitled to an advance on your damage.
The above is a general overview of the options for starting a lawsuit in personal injury cases. However, there are always details to consider when starting a lawsuit that you can best discuss in a personal conversation with an attorney.
Written by Mr. Lilian Madu, LL.M.