The Pre-Action Protocol for Personal Injury Claims sets certain standards which a prospective party to a personal injury claim is expected to observe before Court proceedings are issued. The Protocol encourages the parties to exchange information at an early stage and to consider using a form of alternative dispute resolution.
When does the Pre-Action Protocol for Personal Injury Claims apply?
The Protocol applies to all claims which include a claim for personal injury apart from medical negligence claims, disease or illness claims and low value personal injury claims arising out of road traffic accidents. Where a claim involves personal injury and another type of claim, for example, a claim from property damage, the entire claim will be covered by the Protocol.
What are the requirements of the Pre-Action Protocol for Personal Injury Claims?
The letter of claim
Before commencing Court proceedings a Claimant is expected to send a letter of claim to the Defendant containing a clear summary of the facts of the case together with an indication of the nature of any injuries suffered and of any financial loss incurred. The letter of claim should provide sufficient information for the Defendant to assess liability and the likely size of the claim.
The Claimant is expected to send the Defendant as soon as practicable a Schedule of Special Damages with supporting documents. This may accompany the letter of claim.
Parties are required to inform other parties about any funding agreements they have entered into. If the Claimant has entered into a funding arrangement, for example where he has entered into a Conditional Fee Agreement, this should be stated in the letter of claim.
The Protocol encourages the parties to exchange information at an early stage and, therefore, the letter of claim may contain a request that the Defendant provide documentation relevant to the case.
The Claimant should specify in the letter of claim when he expects the Defendant to respond. Normally a Defendant should be given 21 days to acknowledge receipt and 3 months to provide a full response. This may not be possible, for example, where it is close to the expiry of a limitation period. In such cases the Claimant should give as much notice as is practicable and the parties should consider asking the Court to extend the time for service of the Particulars of Claim or Defence or, alternatively, for a stay of the proceedings to enable the parties to comply with the Protocol.
Once the letter of claim has been sent the Claimant should not normally carry out any further investigation on liability until the Defendant has responded indicating whether liability is in dispute.
The Defendant’s response to the letter of claim
The Defendant should acknowledge receipt of the letter of claim within 21 calendar days of the date of posting of the letter. In his reply the Defendant should identify his insurer (if any) and, where appropriate, identify any significant omissions from the letter of claim.
Within the time set for responding to the letter of claim, which is normally 3 months from the date of acknowledgment of the claim, the Defendant, or his insurers, should respond fully to the letter of claim, stating whether liability is denied. If liability is denied, reasons should be given including any alternative version of events relied upon. If the Defendant denies liability he should enclose any documents he may have which are material to the issues.
If the Defendant admits liability, but alleges contributory negligence by the Claimant, the Defendant should give reasons and disclose any documents he may have which are material to the allegation of contributory negligence.
If the Defendant, or his insurers, fails to acknowledge the letter of claim, the Claimant is entitled to commence Court proceedings.
The Claimant’s response where contributory negligence is alleged
If the Defendant alleges contributory negligence by the Claimant the Claimant should respond to those allegations before commencing Court proceedings.
Expert evidence is required in relation to personal injury claims. Normally only the evidence of a medical expert will be required, although in some cases the evidence of an engineer, for example, will be needed. The Protocol encourages the parties to jointly select an expert and promotes the practice of the Claimant obtaining a medical report, disclosing it to the Defendant who then asks questions and/or agrees the report.
Before a party instructs an expert he is expected to give the other party a list of one or more experts whom he considers suitable to instruct. The other party then has 14 days (where the Claimant nominates an expert in the letter of claim the 14 days runs from the date of the Defendant’s acknowledgment of the letter of claim) to object to one or more of the named experts. The party should then instruct a mutually acceptable expert or if the other party objects to all the listed experts, the parties may instruct experts of their choice. If a party does not object to an expert he may not be able to rely on his own expert evidence. Either party is allowed to send written questions to an agreed expert once his report has been prepared.
Normally the party instructing the expert will be liable for paying the expert’s costs. In the event that any questions are asked of an expert, the party asking the questions will normally be required to pay the expert’s costs associated with answering the questions.
The parties are expected to consider as early as possible whether the Claimant has reasonable needs that could be met by rehabilitation treatment or other measures. The parties are encouraged to follow the Rehabilitation Code, which is annexed to the Protocol.
Alternative dispute resolution
The Protocol expects 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. Parties are expected to always consider before commencing Court proceedings whether it is appropriate to make a Part 36 offer. However, the Courts recognise that parties cannot or should not be forced to enter into any form of alternative dispute resolution procedure.
If a Defendant admits liability in whole or in part any medical reports obtained on which a party relies should be disclosed to the other party. The Claimant is expected to hold off from commencing Court proceedings for 21 days from the disclosure of any such report to enable the parties to consider settlement. If the Claimant has not already sent a schedule of special damages to the Defendant he is expected to do so at least 21 days before Court proceedings are issued.
If the parties are unable to resolve the dispute they are encouraged to carry out a “stocktake” of the issues in dispute and the evidence that is likely to be needed for a Court to decide such issues.
Where the pre-action steps have been carried out by the Defendant’s insurer the Claimant is encouraged to invite the insurer to nominate solicitors between 7 and 14 days before the date upon which the Claimant intends to commence Court proceedings.
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.