The Pre-Action Protocol for Personal Injury Claims sets certain standards which the parties to a personal injury claim are expected to observe before formal 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 to settle the claim.
When does the Protocol for personal injury claims apply?
The Protocol applies to almost all personal injury claims. It does not apply to medical negligence claims, disease and illness claims, and low value personal injury claims arising out of road traffic accidents. There are other Protocols for those types of claims.
What are the requirements of the Pre-Action Protocol for Personal Injury Claims?
The letter of claim
Before commencing court proceedings, the claimant should send a ‘letter of claim’ to the defendant containing a clear summary of the facts of the case, and an indication of the nature of any injuries suffered and/or any financial loss incurred. The letter of claim should provide sufficient information for the defendant to investigate their potential liability, the likely value of the claim, and whether there is a funding agreement in place (eg. a Conditional Fee Agreement).
The claimant must send the defendant a Schedule of Special Damages with supporting documents as soon as practicable. This is often sent with the letter of claim.
If the letter of claim will take some time to prepare, a letter of notification should be sent to the defendant giving them notice that a letter of claim will follow.
Once the letter of claim has been sent, the claimant should not normally carry out any more investigation on liability until the defendant has indicated whether liability is in dispute.
The defendant’s response
The defendant normally has 21 days to acknowledge receipt and give a preliminary response; and 3 months to provide a full response. Where this is not practicable, the court may in some cases extend the deadline.
The defendant should identify his insurer (if any) and, where appropriate, identify any significant omissions from the letter of claim. It should provide a full response to the letter of claim within 3 months. If liability is denied, reasons should be given – including any alternative version of events relied upon – together with any documents they have which are material to the issues.
If liability is admitted, but contributory negligence by the claimant is alleged, the defendant should give reasons and disclose any documents he may have which are material to the allegation of contributory negligence. Contributory negligence means that the other party is partly to blame. If contributory negligence is alleged, the claimant should respond to those allegations before commencing court proceedings.
If there is no response to the letter of claim, the claimant is entitled to commence proceedings.
Expert medical evidence is always required to support of a personal injury claim. Occasionally, other expert evidence is also needed, for instance, an engineer’s report. The Protocol encourages the parties to appoint a mutually agreed joint expert. Usual practice is that the claimant will obtain a medical report which will then be disclosed to the defendant who may then raise issues on it and/or agrees the report.
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 (annexed to the Protocol) which helps the parties identify the claimant’s needs and how to address the issue of funding those needs.
Alternative dispute resolution and settlement offers
The Protocol expects parties to consider alternative dispute resolution as an alternative to court proceedings. The courts take the view that litigation should be a last resort, therefore, they may require parties to provide evidence that alternative means of resolving their dispute were considered. However, the Courts recognise that parties cannot or should not be forced to enter into any form of alternative dispute resolution procedure.
The parties are also expected to consider before commencing proceedings whether it is appropriate to make a Part 36 offer to settle the matter.
If a defendant admits liability (whether in whole or in part), any medical reports obtained and relied on should be disclosed to the other party. The claimant is not to start any court proceedings for 21 days from the disclosure of any such report. This enables the parties to consider settlement. If the claimant has not already sent a schedule of special damages to the defendant, it must do so at least 21 days before court proceedings are issued.
If the parties remain 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 thecourt to decide such issues. Where the defendant’s insurer is involved, the claimant is encouraged to invite the insurer to nominate solicitors between 7 and 14 days before the date on which it is intended to commence proceedings.
What happens if a party does not act in accordance with the Protocol?
The court has a wide discretion when it comes to awarding costs. When determining costs, the court will take into account the conduct of the parties, including whether they have complied with the Protocol; the proportionality of steps taken compared to the size and importance of the matter; and the effect of non-compliance on the other party.
The more serious the non-compliance, the greater the likelihood of a costs penalty being imposed. For instance, unreasonable refusal to consider alternative dispute resolution will be taken into account by the court when deciding who bears the costs of the proceedings.