The Pre-Action Protocol for Disease and Illness Claims sets out a code of good practice which prospective parties to a disease or illness claim are expected to observe before Court proceedings are issued. The Protocol encourages the parties to exchange information at an early stage, to deal with the dispute in an open and timely fashion and to consider using a form of alternative dispute resolution.
When does the Pre-Action Protocol for Disease and Illness Claims apply?
The Protocol applies to all personal injury claims where the injury is not as the result of an accident but takes the form of an illness or disease.
For the purposes of the Protocol a disease covers “any illness physical or psychological, any disorder, ailment, affliction, complaint, malady or derangement other than a physical or psychological injury solely caused by an accident or other similar event”.
The Protocol applies to injuries occurring in the work place and diseases occurring in other situations, for example through the use of products or through the occupation of premises. It does not, however, apply to group actions.
In urgent cases, for example where a claim may be time-barred or where a person is suffering from a terminal disease and has a short life expectancy, it may not be appropriate for the Claimant to follow the Protocol or it may be appropriate to vary the timetable set out in the Protocol. In such cases the Claimant is expected to give reasons to all of the other parties and the Defendant will be expected to deal with the matter urgently. Where a claim may be time-barred the Claimant may apply to the Court for directions and the Court may order a stay of the proceedings pending compliance with the Protocol.
What are the requirements of the Pre-Action Protocol for Disease and Illness Claims?
Occupational, medical and personnel records
Where a potential Claimant makes a request for occupational records including health records and personnel records he is expected to provide sufficient information so as to alert the potential Defendant or his insurer that a possible disease claim is being investigated.
In the case of claims arising from employment, the Protocol encourages Claimants to request such records by completing a standard form which is annexed to the Protocol.
Copies of any records requested should be provided within 40 days of the request and at no cost. If a potential Defendant or his insurer is unable to provide copies within the 40 days they should explain what is being done to obtain the documents and provide a reasonable time estimate for providing copies. If a potential Defendant or his insurer fails to do so it is open to the potential Claimant to apply to the Court for an order for pre-action disclosure.
Where records are required from a third party, that third party is expected to co-operate with such a request. If necessary, the Claimant can apply to the Court for an order for pre-action disclosure by the third party.
Investigation of the claim
The potential Claimant or his adviser is expected to consider whether a claim should be made as soon as the records have been received and analysed. If a decision is made not to proceed further with the claim the potential Defendant should be informed of this as soon as practicable.
The letter of claim
If a decision is made to proceed with the claim, the Claimant is expected to send 2 copies of a letter of claim to the Defendant as soon as sufficient information is available to substantiate a realistic claim. The purpose of the second copy is so that the Defendant can pass a copy on to his insurers.
The Protocol specifies what information the letter of claim should contain. Claimants are encouraged to adopt the standard format letter annexed to the Protocol.
The Defendant’s acknowledgment of the letter of claim
The Defendant is required to acknowledge the letter of claim within 21 calendar days of the posting of the letter of claim. In doing so the Defendant should identify the insurer (if any) who will be dealing with the matter. If there are any significant omissions from the letter of claim the Defendant is expected to identify these at this stage.
If the Defendant or his insurer fails to acknowledge receipt of the letter of claim within the 21 days the Claimant is entitled to commence Court proceedings.
If the negligence occurred outside England and Wales and/ or the Defendant is outside the jurisdiction the time should, however, normally be extended to 42 days.
If there is more than one insurer, the identity of any further relevant insurers, should be notified to the Claimant by the insurer identified in the acknowledgment letter, within one calendar month of the acknowledgment letter.
The Defendant’s response to the letter of claim
Within 3 months of the acknowledgment letter the Defendant, or his representative, is required to provide a reasoned response to the letter of claim.
If the claim is admitted this should be made clear.
If only part of the claim is admitted the Defendant, or his representative, should make clear which issues are admitted and which remain in issue and why.
For more information on:
- Special damages
- Alternative dispute resolution
- Resolution of issues prior to Court proceedings being issued
- What happens if a party does not act in accordance with the Protocol?