New personal injury pre-action protocol

We have a new pre-action protocol for personal injury claims. Recent changes to the rules for low value personal injury claims saw new protocols in respect of those cases but the existing protocol remained unchanged. This is now been revised and the version came into force on 6 April 2015.

In drafting the revised protocol the Civil Procedure Rules Committee opted for a cleaner, fresher look with the use of concise wording and flow diagrams to replace the lengthy narrative style of the old version. The new headings mirror the more recent protocols for low value claims and reflect the committee’s intention that all the protocols should dovetail. A further example of this is the much clearer provision for what happens when a claim falls out of one of the protocols for a low value claims and enters the general personal injury protocol.

The new protocol is drafted to have practical implications too. If admitting liability, the Defendant must now also admit that the Claimant has suffered loss and damage. This prevents a situation where the Defendant admits fault but then argues that there was no loss or damage later on. In another positive move for Claimants, the Rehabilitation Code is central to the new protocol. The parties have a duty to consider rehabilitation at the outset and a link to the most recent code is now included in the protocol, telling the parties exactly what is expected of them. Lastly, the protocol now includes a letter of reply for use where a claim is received by the wrong Defendant. With this letter the Claimant may be signposted to the correct Defendant, preventing him or her from erroneously pursuing the wrong opponent.

There are changes required to the model letter of claim in view of the new protocol. The Claimant must now set out ‘functional limitations’ of the injury and give details of continuing losses so as to ensure an appropriate reserve may be placed on any given claim and that a handler with appropriate expertise is allocated to deal with it. It is also said that the Claimant’s National Insurance number ought to be omitted and should follow under separate cover to protect the Claimant’s security. Finally, the letter of claim should now state that the Claimant is prepared to explain the relevance of any documents requested by way of pre-action disclosure.

Overall the new protocol is to be welcomed but it is not without its limitations. In particular, it was hoped that the protocol would be more prescriptive of the sanctions imposed for non-compliance. This is not been the case and is surprising, given the growing concern expressed by judges about pre-action costs. For now, this remains an area over which the court has little or no control.

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