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PRE-ACTION PROTOCOL FOR PERSONAL INJURY CLAIMS

 

 

 

 




 

1

INTRODUCTION


 

1.1   

Lord Woolf in his final Access to Justice Report of July 1996 recommended the development of pre-action protocols:

"To build on and increase the benefits of early but well informed settlement which genuinely satisfy both parties to dispute."

 

 

1.2   

The aims of pre-action protocols are:

 

more pre-action contact between the parties

better and earlier exchange of information

better pre-action investigation by both sides

to put the parties in a position where they may be able to settle cases fairly and early without litigation

to enable proceedings to run to the court's timetable and efficiently, if litigation does become necessary

to promote the provision of medical or rehabilitation treatment (not just in high value cases) to address the needs of the claimant

 

1.3   

The concept of protocols is relevant to a range of initiatives for good litigation and pre-litigation practice, especially:

 

predictability in the time needed for steps pre-proceedings

standardisation of relevant information, including documents to be disclosed.

 

1.4   

The Courts will be able to treat the standards set in protocols as the normal reasonable approach to pre-action conduct. If proceedings are issued, it will be for the court to decide whether non-compliance with a protocol should merit adverse consequences. Guidance on the court's likely approach will be given from time to time in practice directions.

 

1.5   

If the court has to consider the question of compliance after proceedings have begun, it will not be concerned with minor infringements, e.g. failure by a short period to provide relevant information. One minor breach will not exempt the ‘innocent’ party from following the protocol. The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions.


 


 

2

NOTES OF GUIDANCE


 

2.1   

The protocol has been kept deliberately simple to promote ease of use and general acceptability. The notes of guidance which follows relate particularly to issues which arose during the piloting of the protocol.


SCOPE OF THE PROTOCOL


2.2   

This protocol is intended to apply to all claims which include a claim for personal injury (except those claims covered by the Clinical Disputes and Disease and Illness Protocols) and to the entirety of those claims: not only to the personal injury element of a claim which also includes, for instance, property damage.

 

2.3   

This protocol is primarily designed for those road traffic, tripping and slipping and accident at work cases which include an element of personal injury with a value of less than £15,000 which are likely to be allocated to the fast track. This is because time will be of the essence, after proceedings are issued, especially for the defendant, if a case is to be ready for trial within 30 weeks of allocation. Also, proportionality of work and costs to the value of what is in dispute is particularly important in lower value claims. For some claims within the value ‘scope’ of the fast track some flexibility in the timescale of the protocol may be necessary, see also paragraph 3.8.

 

2.4   

However, the ‘cards on the table’ approach advocated by the protocol is equally appropriate to higher value claims. The spirit, if not the letter of the protocol, should still be followed for multi-track type claims. In accordance with the sense of the civil justice reforms, the court will expect to see the spirit of reasonable pre-action behaviour applied in all cases, regardless of the existence of a specific protocol. In particular with regard to personal injury cases worth more than £15,000, with a view to avoiding the necessity of proceedings parties are expected to comply with the protocol as far as possible e.g. in respect of letters before action, exchanging information and documents and agreeing experts.

 

2.5   

The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case. Where one or both parties consider the detail of the protocol is not appropriate to the case, and proceedings are subsequently issued, the court will expect an explanation as to why the protocol has not been followed, or has been varied.


EARLY NOTIFICATION


2.6   

The claimant's legal representative may wish to notify the defendant and/or his insurer as soon as they know a claim is likely to be made, but before they are able to send a detailed letter of claim, particularly for instance, when the defendant has no or limited knowledge of the incident giving rise to the claim or where the claimant is incurring significant expenditure as a result of the accident which he hopes the defendant might pay for, in whole or in part. If the claimant's representative chooses to do this, it will not start the timetable for responding.


THE LETTER OF CLAIM


2.7   

The specimen letter of claim at Annex A will usually be sent to the individual defendant. In practice, he/she may have no personal financial interest in the financial outcome of the claim/dispute because he/she is insured. Court imposed sanctions for non-compliance with the protocol may be ineffective against an insured. This is why the protocol emphasises the importance of passing the letter of claim to the insurer and the possibility that the insurance cover might be affected. If an insurer receives the letter of claim only after some delay by the insured, it would not be unreasonable for the insurer to ask the claimant for additional time to respond.

 

2.8   

In road traffic cases, the letter of claim should always contain the name and address of the hospital where the claimant was treated and, where available, the claimant's hospital reference number.

 

2.9   

The priority at letter of claim stage is for the claimant to provide sufficient information for the defendant to assess liability. Sufficient information should also be provided to enable the defendant to estimate the likely size of the claim.

 

2.10   

Once the claimant has sent the letter of claim no further investigation on liability should normally be carried out until a response is received from the defendant indicating whether liability is disputed.


REASONS FOR EARLY ISSUE


2.11   

The protocol recommends that a defendant be given three months to investigate and respond to a claim before proceedings are issued. This may not always be possible, particularly where a claimant only consults a solicitor close to the end of any relevant limitation period. In these circumstances, the claimant's solicitor should give as much notice of the intention to issue proceedings as is practicable and the parties should consider whether the court might be invited to extend time for service of the claimant's supporting documents and for service of any defence, or alternatively, to stay the proceedings while the recommended steps in the protocol are followed.


STATUS OF LETTERS OF CLAIM AND RESPONSE


2.12   

Letters of claim and response are not intended to have the same status as a statement of case in proceedings. Matters may come to light as a result of investigation after the letter of claim has been sent, or after the defendant has responded, particularly if disclosure of documents takes place outside the recommended three-month period. These circumstances could mean that the ‘pleaded’ case of one or both parties is presented slightly differently than in the letter of claim and response. It would not be consistent with the spirit of the protocol for a party to ‘take a point’ on this in the proceedings, provided that there was no obvious intention by the party who changed their position to mislead the other party.


DISCLOSURE OF DOCUMENTS


2.13   

The aim of the early disclosure of documents by the defendant is not to encourage ‘fishing expeditions’ by the claimant, but to promote an early exchange of relevant information to help in clarifying or resolving issues in dispute. The claimant's solicitor can assist by identifying in the letter of claim or in a subsequent letter the particular categories of documents which they consider are relevant.


EXPERTS


2.14   

The protocol encourages joint selection of, and access to, experts. The report produced is not a joint report for the purposes of CPR Part 35. Most frequently this will apply to the medical expert, but on occasions also to liability experts, e.g. engineers. The protocol promotes the practice of the claimant obtaining a medical report, disclosing it to the defendant who then asks questions and/or agrees it and does not obtain his own report. The Protocol provides for nomination of the expert by the claimant in personal injury claims because of the early stage of the proceedings and the particular nature of such claims. If proceedings have to be issued, a medical report must be attached to these proceedings. However, if necessary after proceedings have commenced and with the permission of the court, the parties may obtain further expert reports. It would be for the court to decide whether the costs of more than one expert's report should be recoverable.

 

2.15   

Some solicitors choose to obtain medical reports through medical agencies, rather than directly from a specific doctor or hospital. The defendant's prior consent to the action should be sought and, if the defendant so requests, the agency should be asked to provide in advance the names of the doctor(s) whom they are considering instructing.


ALTERNATIVE DISPUTE RESOLUTION


2.16   

The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs.

 

2.17   

It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:

 

Discussion and negotiation.

Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of personal injury or an individual experienced in the subject matter of the claim).

Mediation – a form of facilitated negotiation assisted by an independent neutral party.

 

2.18   

The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists a number of organisations that provide alternative dispute resolution services.

 

2.19   

It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.


[Negotiations/Settlement][2.16][Parties and their legal representatives are encouraged to enter into discussions and/or negotiations prior to starting proceedings. The protocol does not specify when or how this might be done but parties should bear in mind that the courts increasingly take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is in reasonable prospect.]

STOCKTAKE


2.20   

Where a claim is not resolved when the protocol has been followed, the parties might wish to carry out a ‘stocktake’ of the issues in dispute, and the evidence that the court is likely to need to decide those issues, before proceedings are started. Where the defendant is insured and the pre-action steps have been conducted by the insurer, the insurer would normally be expected to nominate solicitors to act in the proceedings and the claimant's solicitor is recommended to invite the insurer to nominate solicitors to act in the proceedings and do so 7–14 days before the intended issue date.


 


 

3

THE PROTOCOL


LETTER OF CLAIM


3.1   

The claimant shall send to the proposed defendant two copies of a letter of claim, immediately sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail. One copy of the letter is for the defendant, the second for passing on to his insurers.

 

3.2   

The letter shall contain a clear summary of the facts on which the claim is based together with an indication of the nature of any injuries suffered and of any financial loss incurred. In cases of road traffic accidents, the letter should provide the name and address of the hospital where treatment has been obtained and the claimant's hospital reference number. Where the case is funded by a conditional fee agreement (or collective conditional fee agreement), notification should be given of the existence of the agreement and where appropriate, that there is a success fee and/or insurance premium, although not the level of the success fee or premium.

 

3.3   

Solicitors are recommended to use a standard format for such a letter – an example is at Annex A: this can be amended to suit the particular case.

 

3.4   

The letter should ask for details of the insurer and that a copy should be sent by the proposed defendant to the insurer where appropriate. If the insurer is known, a copy shall be sent directly to the insurer. Details of the claimant's National Insurance number and date of birth should be supplied to the defendant's insurer once the defendant has responded to the letter of claim and confirmed the identity of the insurer. This information should not be supplied in the letter of claim.

 

3.5   

Sufficient information should be given in order to enable the defendant's insurer/solicitor to commence investigations and at least put a broad valuation on the ‘risk’.

 

3.6   

The defendant should reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any) and, if necessary, identifying specifically any significant omissions from the letter of claim. If there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings.

 

3.7   

The defendant('s insurers) will have a maximum of three months from the date of acknowledgment of the claim to investigate. No later than the end of that period the defendant (insurer) shall reply, stating whether liability is denied and, if so, giving reasons for their denial of liability including any alternative version of events relied upon.

 

3.8   

Where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the time periods of 21 days and three months should normally be extended up to 42 days and six months.

 

3.9   

Where liability is admitted, the presumption is that the defendant will be bound by this admission for all claims with a total value of up to £15,000. Where the claimant's investigation indicates that the value of the claim has increased to more than £15,000 since the letter of claim, the claimant should notify the defendant as soon as possible.


DOCUMENTS


3.10   

If the defendant denies liability, he should enclose with the letter of reply, documents in his possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings.

 

3.11   

Attached at Annex B are specimen, but non-exhaustive, lists of documents likely to be material in different types of claim. Where the claimant's investigation of the case is well advanced, the letter of claim could indicate which classes of documents are considered relevant for early disclosure. Alternatively these could be identified at a later stage.

 

3.12   

Where the defendant admits primary liability, but alleges contributory negligence by the claimant, the defendant should give reasons supporting those allegations and disclose those documents from Annex B which are relevant to the issues in dispute. The claimant should respond to the allegations of contributory negligence before proceedings are issued.

 

3.13   

No charge will be made for providing copy documents under the Protocol.


SPECIAL DAMAGES


3.14   

The claimant will send to the defendant as soon as practicable a Schedule of Special Damages with supporting documents, particularly where the defendant has admitted liability.


EXPERTS


3.15   

Before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he considers are suitable to instruct.

 

3.16   

Where a medical expert is to be instructed the claimant's solicitor will organise access to relevant medical records – see specimen letter of instruction at Annex C.

 

3.17   

Within 14 days the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert (which is not the same as a joint expert). It must be emphasised that if the Claimant nominates an expert in the original letter of claim, the defendant has 14 days to object to one or more of the named experts after expiration of the period of 21 days within which he has to reply to the letter of claim, as set out in paragraph 3.6.

 

3.18   

If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably.

 

3.19   

If the second party does not object to an expert nominated, he shall not be entitled to rely on his own expert evidence within that particular speciality unless:

(a)

the first party agrees,

 

(b)

the court so directs, or

 

(c)

the first party's expert report has been amended and the first party is not prepared to disclose the original report.

 

3.20   

Either party may send to an agreed expert written questions on the report, relevant to the issues, via the first party's solicitors. The expert should send answers to the questions separately and directly to each party.

 

3.21   

The cost of a report from an agreed expert will usually be paid by the instructing first party: the costs of the expert replying to questions will usually be borne by the party which asks the questions.


 


 

4

REHABILITATION


 

4.1   

The claimant or the defendant or both shall consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures.

 

4.2   

The parties shall consider, in such cases, how those needs might be addressed. The Rehabilitation Code (which is attached at Annex D) may be helpful in considering how to identify the claimant's needs and how to address the cost of providing for those needs.

 

4.3   

The time limit set out in paragraph 3.7 of this Protocol shall not be shortened, except by consent to allow these issues to be addressed.

 

4.4   

The provision of any report obtained for the purposes of assessment of provision of a party's rehabilitation needs shall not be used in any litigation arising out of the accident, the subject of the claim, save by consent and shall in any event be exempt from the provisions of paragraphs 3.15 to 3.21 inclusive of this protocol.


 


 

5

RESOLUTION OF ISSUES


 

5.1   

Where the defendant admits liability in whole or in part, before proceedings are issued, any medical reports obtained under this protocol on which a party relies should be disclosed to the other party. The claimant should delay issuing proceedings for 21 days from disclosure of the report (unless such delay would cause his claim to become time-barred), to enable the parties to consider whether the claim is capable of settlement.

 

5.2   

The Civil Procedure Rules Part 36 permit claimants and defendants to make offers to settle pre-proceedings. Parties should always consider before issuing if it is appropriate to make Part 36 Offer. If such an offer is made, the party making the offer must always supply sufficient evidence and/or information to enable the offer to be properly considered.

 

5.3   

Where the defendant has admitted liability, the claimant should send to the defendant schedules of special damages and loss at least 21 days before proceedings are issued (unless that would cause the claimant's claim to become time-barred).

 

 

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