When pursuing a personal injury claim, both the claimants and defendants should conduct themselves in a set way.
This is called the Pre-Action Protocol For Personal Injury Claims.
In this article, we’ll cover;
- What the Pre-Action Protocol is
- The aims of the Pre-Action Protocol
- Why it exists, and
- The steps that all parties are expected to take before issuing court proceedings
- What happens when a party does not conduct themselves within the spirit of the protocol
What is the Pre-Action Protocol For Personal Injury Claims?
This Pre-Action Protocol was introduced on 6th April 2015.
It sets out the steps a court would expect all parties to take before issuing formal court proceedings.
What Are the Aims of the Pre-Action Protocol?
The aim of the Pre-Action Protocol is to;
- Ensure all parties communicate openly with each other
- Have all parties investigate every aspect of a claim and share all information
- Encourage the early use of medical treatment and/or rehabilitation for the claimant
- Promote the use of alternative forms of dispute resolution before issuing court proceedings
Why Does the Pre-Action Protocol Exist?
Before the introduction of the protocol, many solicitors would issue court proceeding as soon as they could, without providing any information to the defendants’ insurance company
When notified of a claim, some insurance companies would do everything they could to delay a claim.
By issuing court proceedings at the start, a solicitor could get an insurer to take a claim seriously.
This has led to some solicitors being accused of issuing court proceedings too early.
The introduction to the Pre-Action Protocol sets out a timetable for both parties of a claim can work to. If they don’t abide by the protocol and the steps within it, the court might choose to penalise them.
The Steps of the Pre-Action Protocol For Personal Injury Claims
Here are the essential steps in the Pre-Action Protocol for personal injury claims;
1. Letter of Notification
This letter informs the defendant (or their insurance company) that the claimant intends to make a claim.
The defendant has 14 days to acknowledge the receipt of this letter.
At this stage, all parties should address the immediate medical needs of the claimant. Early treatment may help the claimant recover from their injuries sooner.
The sooner the claimant recovers, the less the defendant will have to pay in damages.
3. Letter of Claim
The letter of claim is sent to the defendant and their insurer. It should;
- Contain a summary of the facts of the case
- Explain the nature of the injuries sustained by the claimant
- Detail the claimants’ medical needs and financial losses
It should also give the insurer enough information to investigate the case and their potential liability.
4. The Defendant’s Response
The defendant has 21 days to acknowledge receipt of the letter of claim. They should give an initial response naming the insurers.
If they don’t respond within 21 days, the claimant can issue court proceedings.
After the defendant’s first response, they have 3 months to;
- Investigate the claim, and
- Reply, saying whether they admit liability or not
If the defendant denies liability, they must say why. They should explain how the accident happened from their point of view and provide documents to support their argument.
5. Disclosure of Documents
At this stage, the claimant should disclose any supporting documents. Both to the defendant and the court.
These would include;
- Evidence of loss of earnings, and
- Receipts for medical costs, travel expenses etc.
If the defendant denies liability, they must disclose documents that support their argument. This might include;
- CCTV footage of the event
- Training records
- Witness statement, etc.
If the defendant does not provide these documents, the claimant can submit a ‘Pre-Action Application’ to the court to get them.
6. Expert Reports
To support a personal injury claim, the claimant will need at least a medical report prepared by a medico-legal expert.
In some cases, other expert reports might be needed. These might include; accident reconstruction experts, or an engineering expert, for example.
All reports will be disclosed to the insurers. They can then choose to raise issues with the report or agree with it.
7. Alternative Dispute Resolution
The protocol says that litigation should be a last resort. All parties should pursue alternative dispute resolution instead of issuing court proceedings.
Forms of alternative dispute resolution include, joint settlement meetings, mediation and/or arbitration.
If one or more parties refuse to consider the use of mediation, the court can penalise them in in costs.
If parties are still unable to reach a settlement, they’re encouraged to carry out a ‘stocktake’.
In doing so, each side should review their positions and re-evaluate the strengths and weaknesses of their arguments.
The final stage of the protocol is for the claimant to write to the Defendant or their Insurer and ask them to provide the details of the solicitors they have nominated to accept service of the court proceedings.
The claimant should send this invitation 7 or 14 days before issuing court proceedings.
What Happens a Party Fails to Adhere With the Protocol?
The court has a lot of discretion when reviewing the behaviour of both parties.
One of these areas is awarding costs.
When considering who should pay what costs and how much, the court will look at the conduct of both parties. If a court believes that one side failed conduct themselves within the spirit of the protocol, they could issue a financial penalty.
The more serious the breach of the protocol, the greater the possibility of cost penalties.