What is the pre-action protocol for personal injury claims?

The Pre-Action Protocol for Personal Injury Claims sets certain principles which the parties to a personal injury claim are expected to comply with before formal court proceedings are issued. The main aim of the Protocol is to encourage the parties to exchange information at an early stage and to consider using a form of alternative dispute resolution to settle the claim.

Whether you ask a solicitor to make a personal injury claim on your behalf or decide to deal with your own claim, the Pre-Action Protocol may be used.

When does the Protocol for personal injury claims apply?

The Protocol applies to many personal injury claims. It does not apply to clinical negligence claims, disease and illness claims, and low value personal injury claims arising out of road traffic accidents. There are other Protocols in place for those type of claims.

The Protocol is primarily designed for moderate value claims and some aspects of the Protocol may not be appropriate for cases involving very serious injuries. However, the “cards on the table” approach advocated by the Protocol is equally appropriate to high value claims. The spirit, if not the letter of the Protocol, should still be followed for those cases.

What are the overall aims of the Pre-action Protocol?

The overall aim is to have a set protocol or procedure for the way moderate value cases are to be dealt with before court proceedings are issued. The Protocol’s aims are: –

• That both parties provide as much information as they have about the claim to each other
• To ensure meaningful communication between the parties
• To ensure that the relevant investigations are carried out to progress the claim
• To promote the early use of medical treatment and rehabilitation for the claimant
• To ensure that the parties have an early opportunity to negotiate a settlement

The main reason why the Protocol was introduced was to ensure that both parties to a relevant claim work to a set timetable and are aware of what needs to be done and by when. If either of them unreasonably fails to comply with the Protocol rules, then they may be penalised by the Court.

What are the requirements of Pre-Action protocol for Personal Injury Claims?

The Letter of Claim

A “Letter of Claim” is sent to the Insurers before commencing any Court proceedings. This letter contains a clear summary of the facts of the case together with an indication of the nature of the injuries sustained by the claimant. Furthermore, it includes details of the claimant’s rehabilitation needs and financial losses.

The letter of claim should provide the insurers with sufficient information to investigate their potential liability and the likely value of the claim.

If the claimant’s solicitor does not have sufficient information to prepare the letter of claim, a “letter of notification” should be sent to the insurers giving them notice that a letter of claim will follow.

The insurers’ response

The insurers normally have 21 days to acknowledge receipt of the letter of claim and give a preliminary response, and then 3 months to provide a full detailed response.

If liability is denied, reasons should be given, these can include any alternative version of events the insurers wish to rely upon, together with a supporting documentary evidence which is material to the issue.

If there is no response to the letter of claim, the claimant is entitled to commence Court proceedings.

Rehabilitation

The parties are expected to consider as early as possible whether the claimant requires any or any further rehabilitation, and if these could be met by rehabilitation treatment or other measures. Both parties are encouraged to use the Rehabilitation Code (annexed to the Protocol). This Code helps the parties identify the claimant’s urgent needs and how to address the issue of funding for those needs.

Experts

Expert medical evidence is always required to support the claimant’s claim for personal injury. However, occasionally, other expert evidence is needed, for example, an accident reconstruction expert’s report or an engineer’s report.

In the normal course of business, the usual practice is for the claimant to obtain a medical report which will then be disclosed to the insurers. The insurers may then raise issues with the report or might agree it.

Alternative Dispute Resolution

The Protocol specifies that in moderate value claims, litigation should be a last resort. It reiterates this point by stating that the parties should consider some forms of Alternative Dispute Resolution (ADR) to settle the case without the need to issue Court proceedings. Forms of ADR include mediation and arbitration. If parties are resistant to even exploring the use of ADR, the Court can penalise them in costs if it thinks their conduct was unreasonable.

Stocktake

If the parties remain unable to settle the matter, they are encouraged to carry out a Stocktaking to revaluate the issues in dispute. Stocktaking allows the parties to evaluate their strengths and weaknesses in their respective positions.

The final recommendation contained in the Protocol is that before issuing Court proceedings, the claimant should invite the insurance company to nominate solicitors to act on their insured’s behalf. This invitation should be sent to the insurers 7 or 14 days before the claimant intends issuing proceedings.

What happens if a party does not act in accordance with the Protocol?

The Court has a wide discretion when it comes to reviewing parties’ behaviour, and one area where this discretion is most widely applied is in the area of awarding costs. When determining costs, the court will consider the conduct of the parties, including whether they have complied with the Protocol.

The more serious the non-compliance the greater the probability of costs penalties being imposed.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*