The Pre-Action Protocol

Before a claim is lodged in the county court for a personal injury claim it is necessary to follow the pre-action protocol as provided in the Civil Procedure Rules (CPR). The pre-action protocol was brought in to promote a freer exchange of information between the parties, and in an attempt to enable claims where liability was going to be established at an early stage to be settled. This circumvents the cost and time required for litigation.

As personal injury claims usually involve a certain amount of medical attention and/or rehabilitation, early communication between parties allows this to be addressed in the best interests of the injured person. Early communication allows:

• negotiation of issues
• early evaluation of the injuries sustained by a specialist, e.g a personal injury lawyer
• mediation to try to settle the claim – although it should be noted that no party to a claim should ever be pressurized into having to enter into mediation if the issues are likely to be contested.

The personal injury pre-action protocol must be used in all claims for personal injury except those that are covered by either the Clinical Disputes protocol, and the Disease and Illness protocols.

Letter of Claim

At the first stages, the proposed claimant sends a letter to the proposed defendant that outlines a summary of the facts of the case. This letter should also include a description of the nature of the injuries that have been suffered and details of any financial loss that has resulted from the injury. The letter should request the details of the proposed defendant’s insurers. Enough detail should be included so that the insurers are able to start investigating the accident and make a preliminary valuation on the ‘risk.’ The letter should request a response within twenty one days of the date of the letter.

The proposed defendant will then acknowledge the letter and their insurance company will then have a maximum of three months to investigate the claim. If the accident happened outside England and Wales, the timescales increase. A response to the letter before claim is required within 42 days, and the insurers have six months to investigate.

Response

If the defendant denies that they are liable for the accident, they should reply to the claimant and set out why. This letter should include any documents to support this contention that would be likely to become part of the claim should it proceed to trial. The defendant may accept partial responsibility for the claim, in which case this should also be set out in this letter, and the claimant should be given a chance to respond to this, also by letter. If the defendant accepts full responsibility, the claimant should then prepare a schedule of special damages, i.e. out of pocket expenses etc.

Experts

Before either party instructs an expert in the case, the other party should be notified as to the name(s) of the proposed expert(s). The other side then has fourteen days to object to the use of that expert. If the expert is acceptable to the other side, it is then possible to instruct that expert. In the event that the other side objects to all the proposed experts, it then possible to instruct an expert of their own choice. Where access to medical records are required, it is the claimant’s solicitor who should organise access to these documents. Either or both parties should bear in mind the injured party’s needs as early as possible, and consideration should be given to rehabilitation treatment or other measures.

Settling The Claim

If fault is admitted, whether fully or partially, the defendant should consider making an offer to try to settle the case before it goes to court. If the defendant admits fault for the accident in full, the claimant then sends the defendant a list of the expenses and losses incurred at least three weeks before court proceedings commence. Again, this is intended to give the two sides the chance to reach an agreement before starting the litigation process. If liability is disputed, the case is likely to go to a full hearing at court.