Pre-Action Protocol for Personal Injury Claims Flashcards
Introduction
1.1.1 This Protocol is primarily designed for personal injury claims which are likely to be allocated to the fast track and to the entirety of those claims: not only to the personal injury element of a claim which also includes, for instance, property damage. It is not intended to apply to claims which proceed under—
(a)the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013;
(b)the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims;
(c)the Pre-Action Protocol for the Resolution of Clinical Disputes;
(d)the Pre-Action Protocol for Disease and Illness Claims; or
(e)the Pre-Action Protocol for Personal Injury Claims below the small claims limit in road traffic accidents
If at any stage the claimant values the claim at more than the upper limit of the fast track, the claimant should notify the defendant as soon as possible. However, the “cards on the table” approach advocated by this Protocol is equally appropriate to higher value claims. The spirit, if not the letter of the Protocol, should still be followed for claims which could potentially be allocated to the intermediate track or multi-track.
Claims which exit either of the low value pre-action protocolslisted at paragraph 1.1.1(a) and (b) (“the low value protocols”) prior to Stage 2, or the RTA Small Claims Protocol, will proceed under this Protocol from the point specified in those protocols, and as set out in paragraph 1.3.
1.3
Where a claim exits a low value protocol because the defendant considers that there is inadequate mandatory information in the Claim Notification Form (“CNF”), the claim will proceed under this Protocol from paragraph 5.1.
1.3.2
Where in a claim under either low value protocol a defendant—
(a)alleges contributory negligence;
(b)does not complete and send theCNFResponse; or
(c)does not admit liability,
the claim will proceed under this Protocol from paragraph 5.5.
1.3.3
Where a claim exits the RTA Small Claims Protocol and is directed to this Protocol, the claim will proceed under this Protocol from paragraph 5.5.
1.4
1.4.1
This Protocol sets out conduct that the court would normally expect prospective parties to follow prior to the commencement of proceedings.
It establishes a reasonable process and timetable for the exchange of information relevant to a dispute, sets standards for the content and quality of letters of claim, and in particular, the conduct of pre-action negotiations.
In particular, the parts of this Protocol that are concerned with rehabilitation are likely to be of application in all claims.
1.4.2
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.
1.5
Where either party fails to comply with this Protocol, the court may impose sanctions. When deciding whether to do so, the court will look at whether the parties have complied in substance with the relevant principles and requirements.It will also consider the effect any non-compliance has had on another party. It is not likely to be concerned with minor or technical shortcomings
Early Issue
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 legal representative 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.
Litigants in Person
If a party to the claim does not have a legal representative they should still, in so far as reasonably possible, fully comply with this Protocol. Any reference to a claimant in this Protocol will also mean the claimant’s legal representative.
Overview of Protocol—General Aim
The Protocol’s objectives are to—
(a)encourage the exchange of early and full information about the dispute;
(b)encourage better and earlier pre-action investigation by all parties;
(c)enable the parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced;
(d)support the just, proportionate and efficient management of proceedings where litigation cannot be avoided; and
(e)promote the provision of medical or rehabilitation treatment (not just in high value cases) to address the needs of the Claimant at the earliest possible opportunity.
The Protocol
illustrative flow chart is attached at Annexe A (white book 1) which shows each of the steps that the parties are expected to take before the commencement of proceedings.
Letter of Notification
The claimant or his legal representative may wish to notify a defendant and/or the 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.
The Letter of Notification should advise the defendant and/or the insurer of any relevant information that is available to assist with determining issues of liability/suitability of the claim for an interim payment and/or early rehabilitation.
If the claimant or his legal representative gives notification before sending a Letter of Claim, it will not start the timetable for the Letter of Response. However the Letter of Notification should be acknowledged within 14 days of receipt.
Letter of Claim
the claimant should send to the proposed defendant two copies of the Letter of Claim. One copy of the letter is for the defendant, the second for passing on to the insurers, as soon as possible, and, in any event, within 7 days of the day upon which the defendant received it.
The level of detail will need to be varied to suit the particular circumstances. In all cases there should be sufficient information for the defendant to assess liability and to enable the defendant to estimate the likely size and heads of the claim without necessarily addressing quantum in detail.
The letter should 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 the way in which these impact on the claimant’s day to day functioning and prognosis. Any financial loss incurred by the claimant should be outlined with an indication of the heads of damage to be claimed and the amount of that loss, unless this is impracticable.
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.
5.5
5.5.1
Where a claim no longer continues under either low value protocol, the CNF completed by the claimant under those protocols can be used as the Letter of Claim under this Protocol unless the defendant has notified the claimant that there is inadequate information in the CNF.
5.5.2
Where a claim no longer continues under the RTA Small Claims Protocol, the Small Claim Notification Form or SCNF completed by the claimant can be used as the Letter of Claim under this Protocol.
5.6
Once the claimant has sent the Letter of Claim no further investigation on liability should normally be carried out within the Protocol period until a response is received from the defendant indicating whether liability is disputed.
Status of Letters of Claim and Response
Letters of Claim and Response are not intended to have the same formal status as a statement of case in proceedings. 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.
The Response
The defendant must reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any). If the insurer is aware of any significant omissions from the letter of claim they should identify them specifically.
Similarly, if they are aware that another defendant has also been identified whom they believe would not be a correct defendant in any proceedings, they should notify the claimant without delay, with reasons, and in any event by the end of the Response period.
Where there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings. Compliance with this paragraph will be taken into account on the question of any assessment of the defendant’s costs.
The defendant (insurer) will have a maximum of three months from the date of acknowledgment of the Letter of Claim (or of the CNF or SCNF where the claim commenced in a portal) to investigate.
The defendant (insurer) should reply by no later than the end of that period, stating if liability is admitted by admitting that the accident occurred, that the accident was caused by the defendant’s breach of duty, and the claimant suffered loss and there is no defence under the Limitation Act 1980.
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.
If a defendant denies liability and/or causation, their version of events should be supplied.
The defendant should also enclose with the response, documents in their 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.
No charge will be made for providing copy documents under the Protocol.
An admission made by any party under this Protocol may well be binding on that party in the litigation.
Following receipt of the Letter of Response, if the claimant is aware that there may be a delay of six months or more before the claimant decides if, when and how to proceed, the claimant should keep the defendant generally informed.
Disclosure
Documents
The aim of 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 and why, with a brief explanation of their purported relevance if necessary.
Pre-action disclosure will generally be limited to the documents required to be enclosed with the Letter of Claim and the Response. In cases where liability is admitted in full, disclosure will be limited to the documents relevant to quantum, the parties can agree that further disclosure may be given. If either or both of the parties consider that further disclosure should be given but there is disagreement about some aspect of that process, they may be able to make an application to the court for pre-action disclosure under Part 31 of the CPR. Parties should assist each other and avoid the necessity for such an application.
The protocol should also contain a requirement that the defendant is under a duty to preserve the disclosure documents and other evidence (CCTV for example). If the documents are destroyed, this could be an abuse of the court process.
Experts
Claims which do not consist of, or include, a claim for a whiplash injury
Save for cases likely to be allocated to the multi-track, the Protocol encourages joint selection of, and access to, quantum experts, and, on occasion liability experts e.g. engineers. The expert report produced is not a joint report for the purposes of CPR Part 35. 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 their own report. The Protocol provides for nomination of the expert by the claimant in personal injury claims.
Before any party instructs an expert, they should give the other party a list of the name(s) of one or more experts in the relevant speciality whom they consider are suitable to instruct.
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 this 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.
Save for reports in support of a claim for whiplash injury where a medical expert is to be instructed, the claimant’s solicitor will organise access to relevant medical records.
Within 14 days of providing a list of experts 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 assuming there is one (this is not the same as a joint expert). It must be emphasised that when the claimant nominates an expert in the original Letter of Claim, the defendant has a further 14 days to object to one or more of the named experts after expiration of the 21 day period within which they have to reply to the Letter of Claim.
If the defendant objects to all the listed experts, the parties may then instruct experts of their own choice. It will be for the court to decide, subsequently and if proceedings are issued, whether either party had acted unreasonably.
If the defendant does not object to an expert nominated by the claimant, they shall not be entitled to rely on their own expert evidence within that expert’s area of expertise unless—
(a)the claimant agrees;
(b)the court so directs; or
(c)the claimant’s expert report has been amended and the claimant is not prepared to disclose the original report.
Any party may send to an agreed expert written questions on the report, via the first party’s solicitors.
Such questions must be put within 28 days of service of the expert’s report and must only be for the purpose of clarification of the report.
The expert should send answers to the questions simultaneously to each party.
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.
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.
Experts
Claims for whiplash injury
The provisions of this paragraph apply to any medical report in support of a claim for whiplash injury, whether or not it is part of a claim for other injuries.
Where there is also a claim for other injuries, the provisions of section A above apply to instructions to and reports from experts in respect of those other injuries. Section A above also applies in respect of the use of any non-medical experts.
For Whiplash Injuries:
(a)The claimant must obtain a fixed cost medical report from an accredited medical expert who is instructed via a search of the online database of medical reporting organisations and medical experts held by MedCo.
(b)in instructing an expert to provide a fixed cost medical report in a claim for whiplash injury, it is expected that in most cases the medical expert will not need to see any medical records;
(c) where the claimant lives outside England and Wales, but chooses to be examined for the purposes of a medical report in England and Wales, paragraphs (a) and (b) apply.
Where the claimant obtains a medical report in respect of a more serious injury suffered at the same time as the whiplash injury, the claimant may use that report instead of a report for a whiplash injury provided that—
(a)the report is from a doctor who is listed on the General Medical Council’s Specialist Register; and
(b)the report provides evidence of the whiplash injury.
Where the claimant lives outside England and Wales, the medical report in respect of the claim for the whiplash injury (or, if there is more than one report, the first report) must be from a person who is recognised by the country in which they practise as—
(a)being a medical expert; and
(b)having the required qualifications for the purposes of diagnosis and prognosis of a whiplash injury.
“associate” means, in respect of a medical expert, a colleague, partner, director, employer or employee in the same practice and “associated with” has the equivalent meaning;
“accredited medical expert” means a medical expert who is accredited by MedCo to provide medical reports in whiplash injury claims;
“fixed cost medical report” means a report in a whiplash injury claim which is from a medical expert who, save in exceptional circumstances—
(i)has not provided treatment to the claimant;
(ii)is not associated with any person who has provided treatment; and
(iii)does not propose or recommend treatment that they or an associate then provide;
“MedCo” means MedCo Registration Solutions
“whiplash injury” means an injury or injuries of soft tissue in the neck, back or shoulder suffered because of driver negligence as defined in section 1 of the Civil Liability Act 2018 and as further applied by section 3 of that Act to claims arising from a road traffic accident on or after 31 May 2021 and where the duration of the whiplash injury or any of the whiplash injuries—
(i)does not exceed, or is not likely to exceed, two years; or
(ii)would not have exceeded, or would not be likely to exceed, two years but for the claimant’s failure to take reasonable steps to mitigate its effect.
Alternative Dispute Resolution
Litigation should be a last resort. As part of this Protocol, the parties should consider whether negotiation or some other form of Alternative Dispute Resolution (“ADR”) might enable them to resolve their dispute without commencing proceedings.
Some of the options for resolving disputes without commencing proceedings are—
(a)discussions and negotiation (which may or may not include making Part 36 Offers or providing an explanation and/or apology);
(b)mediation, a third party facilitating a resolution;
(c)arbitration, a third party deciding the dispute; and
(d)early neutral evaluation, a third party giving an informed opinion on the dispute.
If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR but unreasonable refusal to consider ADR will be taken into account by the court when deciding who bears the costs of the proceedings.
Negotiations following an admission
Where a defendant admits liability which has caused some damage, before proceedings are issued, the claimant should send to that defendant—
(a)any medical reports obtained under this Protocol on which the claimant relies; and
(b)a schedule of any past and future expenses and losses which are claimed, even if the schedule is necessarily provisional. The schedule should contain as much detail as reasonably practicable and should identify those losses that are ongoing. If the schedule is likely to be updated before the case is concluded, it should say so.
The claimant should delay issuing proceedings for 21 days from disclosure of (a) and (b) above (unless such delay would cause his claim to become time-barred), to enable the parties to consider whether the claim is capable of settlement.
CPR Part 36 permits claimants and defendants to make offers to settle pre-proceedings. Parties should always consider if it is appropriate to make a Part 36 Offer before issuing. If such an offer is made, the party making the offer must always try to supply sufficient evidence and/or information to enable the offer to be properly considered.
The level of detail will depend on the value of the claim. Except for any claim for a whiplash injury medical reports may not be necessary where there is no significant continuing injury and a detailed schedule may not be necessary in a low value case.
In a claim that consists of or includes a claim for whiplash injury, the Whiplash Injury Regulations 2021 provide that—
(a)no offer may be made, invited or accepted by either party; and
(b)no payment may be made by the defendant or accepted by the claimant,
in respect of the claim for whiplash injury until after the fixed cost medical report has been disclosed.
Any claim for whiplash injury and, if relevant, minor psychological injuries suffered on the same occasion as the whiplash injury, will be valued by reference to the tariffs set out in the Whiplash Injury Regulations 2021.
Quantification of Loss—Special damages
In all cases, if the defendant admits liability, the claimant will send to the defendant as soon as reasonably practicable a schedule of any past and future expenses and losses which he claims, even if the schedule is necessarily provisional. The schedule should contain as much detail as reasonably practicable and should identify those losses that are ongoing. If the schedule is likely to be updated before the case is concluded, it should say so. The claimant should keep the defendant informed as to the rate at which his financial loss is progressing throughout the entire Protocol period.
