There are a number of pre-action protocols for different types of personal injury claims. These set out the steps a claimant must take when they intend to make a legal claim for compensation, and how the defendant should respond.
These protocols aim to speed up the process, encourage early settlement through mediation or arbitration, and to ensure the parties have as much information as possible – as early as possible.
When does the pre-action protocol for road traffic accident injury claims apply?
It applies to the following types of claims:
- where the claim for damages arises from a road traffic accident which occurred on or after 30 April 2010
- the Claimant values the claim at not more than £25,000, and
- where the small claims track would not be the normal track for the claim
The Protocol does not apply where the claim arises out of a breach of duty owed to a road user by a person who is not a road user, where a claim has been made to the Motor Insurers’ Bureau, or where the defendant’s vehicle is registered outside of the UK. Nor does it apply if either party has died – or the claimant is bankrupt.
What are the requirements under the protocol?
There is a 3-stage process which the parties are expected to follow. In most cases, the parties are expected to exchange the required information electronically.
Stage 1 involves the following:
Completion of a Claim Notification Form
The Claimant must complete and send a Claim Notification Form (CNF) to the defendant and their insurer (there are prescribed forms for this purpose). The CNF should be verified with a statement of truth signed by the claimant (or their legal representative).
If inadequate mandatory information is given in the CNF, the defendant may decide that the claim should no longer continue under the protocol.
The defendant’s insurer is expected to acknowledge receipt electronically of the CNF the next day after receipt. The insurer must then 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.
When might the protocol ceases to apply?
If the defendant alleges contributory negligence on the claimant’s part (except where the claimant admits to not wearing a seat beat), or does not respond or admit to liability the protocol ceases to apply. It also ceases to apply if the defendant notifies the claimant that they consider that inadequate mandatory information has been provided, or that the small claims track would be the normal track for the claim.
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 must obtain a medical report, if one has not already been obtained. Once this has been sent to the defendant, the claimant will have no further opportunity to challenge the factual accuracy of it. Where more than one type of expert report is needed, or where further medical reports are required, this is allowed under the protocol.
The Protocol contains detailed provisions relating to interim payments.
The Stage 2 Settlement Pack
The claimant sends a ‘Stage 2 Settlement Pack’ to the defendant within 15 days of the claimant approving the final medical report, and agrees to rely on the prognosis in that report. The protocol sets out what the pack must contain.
Consideration of the claim
The defendant then has 15 days to consider the Stage 2 Settlement Pack and respond to the offer. The parties then have 20 days to conduct further negotiation – there are provisions for the extension of these time periods.
Offers and counter-offer
The protocol contains detailed provisions relating to the acceptance of offers, and for making counter-offers.
The protocol sets out the circumstances in which it will cease to apply, for instance, where the defendant gives notice to the claimant that it considers that the small claims track would be the normal track for the claim, or if the defendant fails to respond to the Stage 2 Settlement Pack.
The protocol sets out in detail what a defendant must pay where a settlement is agreed. It also contains provisions relating to the obtaining of up to date Certificates of Recoverable Benefits, as well as provisions relating to claims for vehicle related damage.
Failure to reach an agreement
Where the parties fail to reach an agreement, the claimant must send the defendant a Court Proceedings Pack. The protocol sets out what this should contain. If the defendant takes the view that this does not comply with the requirements of the protocol, it should return it to the claimant within 5 days with an explanation as to why it does not comply.
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 to then commence court proceedings.
The Stage 3 procedure involves the commencement of Court proceedings (set out in Practice Direction 8B to the Civil Procedure Rules).
Only ‘fixed costs’ are recoverable under the protocol. The amount of those costs is set out in Part 45 of the Civil Procedure Rules.