Must I change solicitor?

Last summer I was riding my motorcycle in Suffolk with my wife riding as pillion. It was a bright summer’s day and the roads were dry. We were not in a rush and were having a great time cruising along. About 100 to 120 metres ahead, I saw a car waiting at a junction with its indicator on to turn right. I assumed the driver had seen us approaching. However, as we got closer to the junction the car suddenly pulled out, leaving me no opportunity to avoid a collision. Both of us suffered injuries, her worse than me. She required a couple of months off work and surgery to her leg and shoulder. I was more fortunate.

My insurer appointed a solicitor to represent us both, and the claims process has gone smoothly so far. However, the other side now alleges that I was partly responsible for the accident because I was speeding, which I strongly deny. They argue that this creates a conflict of interest and that my girlfriend and I should each have separate legal representation. My solicitor disagrees. Who is correct?

Rob, by email

Answer

If the defendant is alleging contributory negligence, meaning that they claim you were partly responsible for the accident, then you and your wife should have different solicitors acting for you as there is indeed a conflict of interest as the other side has pointed out.  One of you should change solicitors.

Your wife’s claim will succeed in full, either entirely against the car driver’s insurer or with a proportion covered by your insurer if some blame is attributed to you. The burden is on the defendant to prove contributory negligence. In this case, they would need to show not only that you were exceeding the speed limit, but also that your speed materially contributed to the accident. If you are found to have been contributorily negligent then your compensation will be reduced.