The Pre-Action Protocol for personal injury claims aims to set out certain standards which both parties are expected to follow in personal injury claims before Court proceedings are issued. Whether a Solicitor makes a personal injury claim on your behalf, or you decide to deal with it yourself, there are set procedures and rules that should be followed.

There are several reasons why anyone who is making or defending a personal injury claim should comply with the Pre-Action Protocol.

The Protocol strongly advises the parties to exchange information at an early stage and to consider using forms of alternative dispute resolution to settle the claim without the need for Court proceedings to be issued, so as to ensure a cost-effective conclusion can be reached where possible.

When does the Pre-Action Protocol for Personal Injury Claims Apply?

Generally, this Protocol should be relevant to almost all personal injury claims arising from employers liability, occupiers liability or public liability accidents.

The protocol does not apply to medical negligence claims, industrial disease and illness claims, and low value personal injury claims arising out of road traffic accidents as these types of claims fall under their own separate protocols.

The Protocol applies to all other personal injury claims, and must also be used by the parties in Fast-Track claims which are valued at £25,000 or less once they have fallen out of the Portal.

Some aspects of the Protocol may not be appropriate for more serious injury cases as it is primarily designed for moderate value claims.

What are the Overall Objectives of the Pre-Action Protocol?

The aims of the protocol are to:

• Encourage the exchange of early and sufficient information about the claim between parties;
• Ensure better and earlier pre-action investigation by both parties so that the relevant investigations are carried out to progress the claim;
• Enable the parties to avoid litigation by negotiating a settlement at the earliest opportunity to avoid Court proceedings;
• Support the proportionate and efficient management of proceedings where litigation cannot be avoided, and;
• Promote the early provision of medical or rehabilitation treatment to address the needs of the Claimant. 

What are the Requirements of the Pre-Action Protocol for Personal Injury Claims?

Letter of Claim 

The Claimant or their Solicitor should notify the Defendant (or their insurers) that a Claimant has the intention to issue a claim as soon as is reasonably possible. They may have the opportunity to give notice before they can prepare a detailed letter of claim.

The Claimant must send two copies of the ‘letter of claim’ to the party that is allegedly responsible for the accident. This should include a clear summary of the facts and background of the case along with an indication of the injuries they have suffered, and details of financial losses and rehabilitation needs.

It should provide sufficient information so that the Defendant can investigate their potential liability and the value of the claim. This information could include a schedule of special damages as supporting documents which is often sent with this letter.

This letter should contain information such as:

• The Claimant’s full name and address;
• Claimant’s work number;
• Claimant’s employer, name, and address;
• Details of the type of accident including the date and time;
• Brief details of how the accident occurred and the injuries that the claimant has allegedly suffered;
• Why the Claimant believes the Defendant was at fault for the accident;
• Name of the hospital or medical practice at which the claimant received treatment and whether they are still suffering from the injury;
• Details of any losses including their earnings and any other losses;
• Advise if obtaining a Police report;
• Advise that a letter has been sent to the defendant’s insurers and which documents are expected to be relevant. 

In some cases, the letter of claim takes significant time to prepare; therefore, a letter of notification should be sent to the Defendant at the earliest convenience to inform them that the letter of claim will follow.

Once this has been sent, the Claimant should not proceed with any further investigations until the defendant has indicated whether liability is in question.

The Defendant’s Response

Typically, the Defendants have up to 21 days to acknowledge receipt of the letter (from the date the claimant posted the letter) and to give a preliminary response, and a further 3 months to provide a full detailed response. The Court may extend this deadline if it is not feasible for some cases.

The Defendant should aim to reply no later than the end of that period and state if liability is admitted by acknowledging whether the accident occurred, that the accident was caused by their breach of duty, and the Claimant suffered a loss to which there is no defence under the Limitation Act 1980.

The Defendant, where appropriate, should identify its insurer and any significant omissions from the letter of claim and provide a response to whether they accept or deny liability. If liability is denied, reasons should be given, which can include alternative versions of events that the insurers wish to rely upon, as well as any supporting documents and evidence which are relevant to the issue.

If liability is admitted but contributory negligence is alleged by the Claimant, the Defendant should give reasons and disclose documents which are significant to the accusation. The Claimant should then respond to those allegations before court proceedings begin.

However, the Claimant is entitled to begin Court proceedings if there is no response to the letter of the claim.

Rehabilitation 

Both parties are expected to consider whether any present or future rehabilitation treatment or other measures are required for the Claimant as soon as possible. The parties are encouraged to abide by the Rehabilitation Code (annexed to the protocol) to help them identify the Claimant’s urgent needs and how to address the issue of funding for those needs.

This has an added benefit for the defendant because they will have to pay less in damages if the Claimant recovers quickly because they had early rehabilitation treatment available.

Experts

In order to support the Claimant’s personal injury claim, expert medical evidence is always compulsory. The protocol encourages the parties to appoint a mutually agreed joint expert.

For instance, the usual practise involves the Claimant obtaining a medical report which will then be disclosed to the Defendant. The Defendant or their insurer may then raise issues with the report or agree with it, and it may be that further expert evidence is recommended where there are multiple/wide-ranging injuries.

 ADR and Settlement Offers

The Protocol expects parties in moderate value claims to consider alternative dispute resolutions (ADR) instead of resorting to Court proceedings as a way of saving legal costs. The Courts take the view that litigation should be a last resort and may require the parties to show evidence that alternative means of resolving the issues in dispute were considered.

These forms of alternative dispute resolution could include internal complaint procedures, negotiation, ombudsman services, and mediation amongst various other options. If a party resists the option of exploring the use of ADR or refuses to participate, the Court could order them to pay additional costs (especially if the conduct of the parties was unreasonable). It is however, important to recognise that the Courts cannot or should not force any parties to enter any form of ADR procedures.

Where appropriate, the parties are also expected to make a Part 36 Offer to settle their matters before issuing proceedings.

If the Defendant fails to agree to liability (in whole or in part), any medical reports obtained and relied upon should be disclosed to the other party. After disclosing such reports, the Claimant should not start Court proceedings for 21 days as it enables the parties to consider any potential settlement.

If the Claimant has not sent a Schedule of Special Damages already, they should do so at least 21 days before Court proceedings are issued where possible.

Stocktake

If the parties remain unable to resolve and settle the dispute after going through the Protocol process, they are encouraged to carry out a ‘stocktake’ to revaluate the issues in dispute. Stocktaking allows both parties to evaluate their strengths and weaknesses in their positions and produce evidence that is likely to be needed for the courts to decide such issues.

The final recommendations contained in the Protocol are that prior to issuing court proceedings, the Claimant is encouraged to invite the insurance company/Defendant to nominate Solicitors to act on the insurer’s behalf.

Where the Defendant’s insurer is involved, the Claimant should send the invitation between 7 and 14 days before the date that the Claimant intends to commence proceedings.

What Happens if a Party does not Act in Accordance with the Protocol?

When it comes to reviewing a party’s behaviour, and particularly when awarding costs, the Court has wide discretion under CPR 44.

The Court will consider the conduct of the parties throughout the case, including whether they have complied with the Protocol, when determining costs. They will consider the proportionality of the steps taken compared to the seriousness of the breach along with the effect of non-compliance on the other party.

In the more serious non-compliance cases, the likelihood of a costs penalty being imposed is much higher. For example, unreasonable refusal to consider alternative dispute resolution will be taken into account when deciding who bears the costs of the proceedings by the Court.

The courts can impose sanctions such as the following:

• Staying or suspending proceedings until the protocol has been followed;
• Ordering that the infringing party pays the other party’s costs in full or partly;
• Ordering that the party at fault pays the other’s cost on a generous basis (indemnity basis);
• Depriving the successful Claimant of all or part of the interest they may have otherwise been entitled to;
• Awarding interest against an unsuccessful Defendant at a higher rate than otherwise would have been awarded.

These sanctions can be extremely costly, so complying with the Protocol is essential.

Legal costs under the Pre-Action Protocol for Personal Injury Claims

Legal costs for personal injury claims will depend upon the value and complexity of the case. Claims which fall under the pre-action protocol for personal injury claims will either fall into a fixed costs category or standard costs category.

If a personal injury claim has been submitted via the MOJ Portal, then fixed costs will always apply irrespective of the value of damages recovered, until such a matter is allocated to the Multi-Track.

If a Letter of Claim has been sent however, then standard costs can be recovered as long as the pleaded damages exceed £25,000 (arguments as to reasonable valuation of the claim may arise if the claim settles for significantly less).

How can ARC Costs Assist?

ARC Costs are a team of specialist Costs Draftsmen and Costs Lawyers who can assist in all costs issues for personal injury claims. We regularly provide advocacy related services to professional and Litigant in Person clients, and as independent costs experts we can act for either the Paying or Receiving Party.

If you require specialist assistance with costs arising under the pre-action protocol for personal injury claims, please do not hesitate to get in touch.

To discuss your personal injury costs case further, please do not hesitate to contact us on 01204 397302 or email one of the team at info@arccosts.co.uk. Alternatively, you may complete our online enquiry form and we will be in touch to discuss your query further on the same day.

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