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.
If the claim is not admitted in full the Defendant, or his representative should explain why and enclose with the letter of reply any documents he has which are material to the issues and which would be likely to be ordered to be disclosed by the Court. If the Claimant’s version of events is disputed the Defendant should put forward his own version of events.
If there is more than one Defendant and letters of claim are sent at different times or if a Defendant needs longer than 3 months to reply, they should request an extension of time from the Claimant. In doing so they should give reasons as to why an extension of time is needed.
If the negligence occurred outside England and Wales and/ or the Defendant is outside the jurisdiction the time should normally be extended to 6 months.
Where the Defendant admits liability and/ or causation, but time is needed to resolve other issues the parties are expected to agree a reasonable period for resolving such issues.
The Claimant is required to send to the Defendant as soon as practicable a Schedule of Special Damages with supporting documents.
The Protocol leaves the decisions as to whether experts should be jointly instructed and as to whether reports should be disclosed sequentially or by exchange to the parties. However, the parties are encouraged to ensure that expert evidence is obtained quickly and cost-effectively.
Where the parties agree to a single expert the name(s) of one or more experts should be provided to the other party before an expert is instructed. The other party then has 14 days to object to one or more of the named experts. The party who put forward the experts should then instruct a mutually acceptable expert. If the other party objects to all the listed experts the parties are free to instruct experts of their own choice.
If a party does not object to an expert nominated he will not normally be entitled to rely on his own expert evidence.
Either party is entitled to send questions to an agreed expert the report.
The person instructing the expert will normally be responsible for paying the expert’s costs. Normally his costs of replying to questions will be borne by the party which asks the questions.
Where the Defendant admits liability in whole or in part any medical report obtained by either party should be disclosed to the other party.
Alternative dispute resolution
The Protocol expects the parties to consider alternative dispute resolution procedure as an alternative to Court proceedings. The Courts take the view that litigation should be a last resort and may require parties to provide evidence that alternative means of resolving their dispute were considered. However, the Protocol recognise that parties cannot and should not be forced to enter into any form of alternative dispute resolution procedure.
The Protocol sets out some of the options the parties may wish to consider for the purpose of resolving their dispute. These are discussion and negotiation, early neutral evaluation by an independent third party and mediation.
Resolution of issues prior to Court proceedings being issued
The Protocol encourages parties to put forward “Part 36 offers” prior to Court proceedings being commenced.
The parties are also encouraged to carry out a “stocktake” of the issues in dispute and the evidence that will be required to decide those issues prior to the commencement of Court proceedings.
The Protocol encourages parties to disclose any expert evidence relating to liability and causation upon which they intend to rely prior to the commencement of Court proceedings. The Claimant should hold off issuing Court proceedings for 21 days form the disclosure of any such reports to enable the parties to consider settlement of the claim.
Where the pre-action steps are conducted by the Defendant’s insurer the Claimant or his solicitor is recommended to invite the insurer to nominate solicitors to act in the proceedings 7 to 14 days before the proceedings are commenced.
What happens if a party does not act in accordance with the Protocol?
The Court has a very wide discretion when it comes to awarding costs. When determining costs the Court will take into account the conduct of the parties including whether the parties have complied with the Protocol.
When considering whether a party has complied with the Protocol the Court will be concerned about whether the parties have complied in substance and is unlikely to be concerned with minor or technical shortcomings. The Court will also consider the proportionality of the steps taken compared to the size and importance of the matter, will take account of the urgency of the matter and will look at the effect of non-compliance on the other party.
A single minor breach by one party will not exempt the other party from following the Protocol.