The personal injury Pre-Action Protocol is a guideline to help parties settle a claim without needing to go to court. The protocol is effectively a process deemed by the Court as reasonable for the parties to follow before court proceedings begin. The Pre-Action Protocol is designed to encourage both parties to:

  • have more contact with each other before any court proceedings are issued
  • fully exchange all relevant information
  • further understand each other’s case and fully investigate any allegations

  The above objectives can help promote the early settlement of a claim, as well as ensure that any case that is eventually brought to the Court is well-researched and documented so it can be dealt with quickly and efficiently. Below we have outlined the Pre-Action Protocol as it pertains to a personal injury case, explaining each step fully so you can be sure you have met these requirements prior to making your claim.

Personal Injury Pre-Action Protocol

Step 1 – Early notification

The first step of the protocol states that the claimant or their legal representative should notify the defendant (and/or their insurer) as soon as they know a claim is likely to be made, but before they send a detailed letter of claim. Early notification of the intent to claim helps the defendant acknowledge the potential claim, as in some instances they may not know of the claim. Also, if the claimant has begun to incur costs associated with the claim it is important to notify the defendant as quickly as possible.

Step 2 - The letter of claim

Following the early notification, the claimant is then required to send a detailed letter of claim to the defendant with an additional copy enabling the defendant to send to their insurers. The letter of claim should provide the defendant with:

  • A clear summary of the facts of the claim
  • A description of the nature of the injuries sustained by the claimant
  • A description of the losses incurred by the claimant as a result of the injury

  The information within the letter of claim should be sufficient for the defendant and their representatives to fully investigate the claim and assess both liability and the potential value of the claim.

Step 3 - Preliminary response

The defendant has up to 21 days, starting from the date the letter was posted to issue a response to the letter of claim. This preliminary response should highlight any information relating to the claim the defendant feels is missing from the letter of claim and identify the defendant’s insurers.

Step 4 – Investigation

Once the letter of claim has been issued and the preliminary response received, no further investigation regarding liability is normally carried out until the defendant has responded and indicated whether liability is in dispute. To determine their liability position, the defendant has a maximum of three months from the date of the acknowledgement of the claim to fully investigate the circumstances. By the end of the three months they should then reply in full to the letter of claim and state whether liability is in dispute and, if so, the reasons for their dispute. The defendant should also enclose all documents relevant to the claim.

Step 5 - Special damages

The claimant is required to send a Schedule of Special Damages to the defendant as soon as possible, including supporting documents, particularly in cases where the defendant has accepted liability.

Step 6 – Experts

The protocol has stated guidelines regarding the appointment of experts to act in the claim. In regards to a personal injury claim, these guidelines normally relate to medical experts appointed to provide a medical report on the claimant’s injuries. These guidelines include providing notice to the other party about the medical expert and allowing them to ask questions to the expert following their production of the medical report.

Rehabilitation

The claimant, the defendant, or indeed both parties, should consider at the earliest opportunity whether the claimant’s injuries mean they have a reasonable requirement for rehabilitation treatment.

Resolution of issues

If liability has been admitted, all medical reports should be disclosed to the other party. The claimant should then delay any proceedings for 21 days from the date of the disclosure of the report to allow adequate time for the parties to consider settlement.

Failure to comply with the personal injury pre-action protocol

The court has the power to impose sanctions on any party when proceedings have been issued if it is deemed that they have disregarded significant parts of the protocol. These sanctions can include:

  • Suspending proceedings until the Protocol has been demonstrably followed
  • Ordering the infringing party to pay all or part of the other party’s costs
  • Ordering the infringing party to pay the other’s cost on a generous, ‘indemnity’ basis
  • Depriving a successful claimant of all or part of the interest they would have been entitled to
  • Awarding a higher rate of interest against an unsuccessful defendant

 As these sanctions could prove to be extremely expensive, compliance with the Pre-Action Protocol is essential. 

 

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