The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents describes the behaviour the Court will normally expect of prospective parties to a claim to which the Protocol relates before Court proceedings are issued.
When does the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents apply?
The Protocol applies to the following claims:
- where there is a claim for damages arising from a road traffic accident which occurred on or after 30 April 2010;
- the claim includes a claim for damages in respect of personal injury;
- the Claimant values the claim at not more than £10,000 on a full liability basis including pecuniary losses but excluding interest; and
- where the small claims track would not be the normal track for the claim.
- Where a claim includes vehicle related damage such damage should not be taken into account for the purpose of valuing the claim.
The Protocol does not apply where:
- the claim is in respect of a breach of duty owed to a road user by a person who is not a road user;
- a claim has been made to the Motor Insurers’ Bureau;
- either party is deceased;
- either party is a “protected party”;
- where the Claimant is bankrupt; or
- where the Defendant’s vehicle is registered outside of the UK.
What are the requirements of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents?
The Protocol sets out a 3 stage process which the parties are expected to follow. In most cases the parties are expect to provide information to each other electronically.
Stage 1 of the process involves the following steps being taken:
Completion of a Claim Notification Form
The Claimant is required to complete and send a Claim Notification Form to the Defendant and his insurer. There are prescribed forms which should be used. The Claimant is required to confirm certain things in the Claim Notification Form which include the provision of certain information where a claim for vehicle related damage is being made, where the Claimant is a child and where there is a need for rehabilitation.
The Claim Notification Form should be verified with a statement of truth signed by the Claimant or his legal representative.
If inadequate mandatory information is given the Defendant is entitled to decide that the claim should not longer continue under the Protocol.
The Defendant’s insurer is expected to acknowledge receipt electronically of the Claim Notification Form the next day after receipt. The insurer is expected to send the Claimant an “Insurer Response” within 15 days. If the claim is being dealt with by the Motor Insurers’ Bureau they have 30 days to respond.
Certificate of recoverable benefits
The Defendant is required, before the end of Stage 1, to apply to the Compensation Recovery Unit for a certificate of recoverable benefits.
Circumstances in which the Protocol ceases to apply
If the Defendant alleges contributory negligence (other than where a Claimant admits to not wearing a seat beat) or does not respond or does not admit liability or notifies the Claimant that he considers that inadequate mandatory information has been provided or that the small claims track would be the normal track for the claim, the Protocol ceases to apply. In such circumstances the Pre-Action Protocol for Personal Injury Claims may apply.
Stage 2 of the process involves the following steps being taken:
The Claimant is required to obtain a medical report, if one has not already been obtained. Once the medical report has been sent to the Defendant the Claimant will have no further opportunity to challenge the factual accuracy of it. For this reason the Protocol encourages the Claimant to check it before it is sent. Where the Claimant was not wearing a seat belt the report is required to contain sufficient information to enable the Defendant to calculate the appropriate reduction of damages.
The Protocol permits the use of more than one medical report where experts are needed in more than one discipline.
The Protocol also permits the use of subsequent medical reports, for example, where the Claimant is receiving ongoing treatment. Where subsequent medical reports are needed the parties are expected to agree to a stay of the Protocol.
The Protocol contains detailed provisions relating to interim payments.
The Stage 2 Settlement Pack
The Claimant is required to send to the Defendant a “Stage 2 Settlement Pack” within 15 days of the Claimant approving the final medical report and agreeing to rely on the prognosis in that report. The Protocol sets out what the pack must contain.
Consideration of the claim
The Defendant has 15 days to consider the Stage 2 Settlement Pack and make an offer. The parties then have 20 days to conduct further negotiations. The Protocol makes provision for the extension of these time periods.
Offers and counter-offers
The Protocol contains detailed provisions relating to the acceptance of offers and the putting forward of counter-offers.
Circumstances in which the Protocol ceases to apply
The Protocol will cease to apply where:
the Defendant gives notice to the Claimant that it considers that the small claims track would be the normal track for the claim;
- the Defendant withdraws the admission of causation;
- the Defendant fails to respond within 15 days of receiving the Stage 2 Settlement Pack (or extension agreed);
- where an offer is withdrawn after 35 days of the Defendant receiving the Stage 2 Settlement Pack (or any extension agreed).
The Protocol sets out in detail what a Defendant must pay where a settlement is reached and contains provisions relating to the obtaining of up to date Certificates of Recoverable Benefits. It also contains provisions relating to claims for vehicle related damage.
Failure to reach an agreement
Where the parties fail to reach an agreement the Claimant is required to send the Defendant a Court Proceedings Pack. The Protocol sets out what this should contain.
If the Defendant takes the view that the Court Proceedings Pack does not comply with the requirements of the Protocol it should be returned to the Claimant within 5 days with an explanation as to why it does not comply.
If the Defendant intends to nominate a legal representative to accept service their details should be provided in the prescribed form.
Failure to make payment
If the claim is settled (except where the Claimant is a child) but the Defendant fails to make payment the Claimant is entitled to give the Defendant written notice that the claim will no longer continue under the Protocol and commence Court proceedings.
The Stage 3 procedure involves the commencement of Court proceedings. The procedure is set out in Practice Direction 8B to the Civil Procedure Rules.
Only “fixed costs” are recoverable in relation to claims to which the Protocol relates. The amount of such costs is set out in Part 45 of the Civil Procedure Rules.