Robbie Wilson
- Partner
Insights | Medical Negligence
It’s about being personable – Anderson Strathern’s approach to personal injury awards and trusts
6 December 2021
It’s important to have the right people advising and supporting you when raising a claim and setting up a trust. It is not a one size fits all approach. We always get to know our clients as we guide them through the different stages of a claim, setting up a trust and the future running of it.
Personal Injury Claims
Our dispute resolution team have vast experience dealing with personal injury and medical negligence claims throughout Scotland. Our focus is on investigating, litigating and negotiating settlements on behalf of our clients. We keep our clients fully updated and do our very best to ensure each client receives the maximum amount of compensation. Robbie Wilson and his team deal with the various steps involved in pursuing an action from initial contact through to receiving an award.
Initial Discussions
At the outset, we would meet with you to fully understand the circumstances, discuss the consequences for you and what we can achieve. This ensures we know what is important to you so that we can best advise you as to how you should proceed. We understand the pain and suffering you will have endured and the impact this can have on your work, family and lifestyle. Our aim is to try to get a financial award that restores you, as much as possible, to the position you would have been in but for the injury or negligence.
Investigation
If we believe there is merit in pursuing your claim, and you would like to proceed, we’ll undertake some initial investigations. This involves recovering and considering any relevant documentation such as accident reports and medical records. This aids our understanding of the circumstances and allows us to take a more informed view of your legal position. Following this, we would work with you to formulate a detailed summary of your claim based on your recollection and the documentation recovered. At this point, we would be able to highlight the key legal issues and instruct the appropriate expert reports we require to support your position.
Intimating a Claim
Should we obtain supportive expert reports, we’d then intimate your claim to the person/organisation responsible for your injury (the defender). This stage involves setting out your legal case, advising that we have supportive evidence and asking them to confirm their position. It is hoped that, at this point, the defender would admit liability and make a reasonable settlement offer which would avoid the need for litigation. However, it is not usually this straightforward.
Raising Court Proceedings
If we receive no offer or an unreasonable offer, we would then pursue your claim in the appropriate court to recover the financial compensation you are entitled to. Throughout this stage, we’ll continue to build your case by taking further statements and instructing further expert reports. During this stage, there would be various meetings and correspondence between parties. Should any settlement offers be received we would discuss these with you and provide our advice. You may accept any settlement offer made, and most cases do settle before the full court hearing. We appreciate this can be stressful stage but our experienced team are with you every step of the way to advise and assist.
Court Hearing
If no settlement is reached then the case would eventually go to court. This may seem daunting but it is simply the presentation to the court of all the information and documentation we have ingathered during the previous stages. Our expert team would again be on hand to assist throughout the court proceedings and conduct this on your behalf.
Following the hearing of evidence, the sheriff/judge would then, if they deemed appropriate, make an award of damages in your favour and the defender would be required to pay this sum.
Upon receiving an award by means of a negotiated settlement or court order, it is always important to consider setting up a personal injury trust.
Personal Injury Trusts
Our personal injury trusts team have been involved with setting up trusts to hold awards of all different values and for people who have come from a diverse range of backgrounds. Anyone who has had an award should consider whether it is right for them to have a trust. Sarah Lonie and her team can help are expert in supporting clients looking at setting up and running a trust for a personal injury award.
Setting up a Trust
People often feel overwhelmed when discussing trusts as most people have never had to deal with one before. We aim to break information down for clients and explore which option is right for their circumstances. It is important for us that our clients are comfortable and understand what is being set up. We want to support clients through the process and set up a trust that will work and support the purpose of the award.
When setting up the trust, you should consider what the award was made for and what the needs of the injured person are, whether that is you or another. This will help with deciding on the aims of the trust. We will take you through the legalities of what you can and can’t do, but essentially we need to know what the award needs to pay for. This allows us to set up the most appropriate trust for the needs of the injured person.
Who should the Trustees be?
The trustees should be people that you trust, you feel would make decisions that you would be comfortable with and would act at all times in the injured person’s best interests. We’ll help you consider who would be the best people to be appointed. If the trust is for you, you could be a trustee. You should think about how you feel about making investment decisions or buying property. If you’re setting the trust up on behalf of someone else it may also make sense for you to be a trustee. We will discuss how you feel about making important decisions that are going to affect someone else.
Having a professional trustee may also be helpful and is sometimes a requirement of the award itself.
As trustees are under an obligation to take advice, you should think about whether the people you are appointing would take advice and consider it carefully. You may not want to appoint someone who may make rash and risky decisions when funds are intended to last for the rest of the injured person’s life.
Running a Trust
We’re here to help you run a trust and keep you within the law when making decisions. We should consider what the injured person needs and how the trustees can make decisions to help them. Often the award provides us with guidance as to how much should be allocated for certain things, for example, the payment for care or the purchase of a property. Certain trusts will allow other people, often family members, to benefit from the award as well, for example if someone is taking the injured person on holiday. However, some trusts have very specific rules that stop other people benefitting over a certain amount. It is crucial this is considered before payments are made to ensure the trust does not break any of these rules.
We have experience of dealing with trusts for children, adults with and without capacity and people with various levels of disability. We appreciate that no one approach will fit all circumstances. It is very much considering what the beneficiary needs from the trust and how the trustees can provide that, within the rules of the trust. Important matters to consider will be, for example, family circumstances, care provided by family members or regulated care providers, is the property lived in fit for purpose and should the person move or have the property adapted to their needs.
We know that life has been difficult, which is why the award has been made. We are here to help and assist in providing the best support possible for the injured person, while bringing peace of mind.
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