The Pre-Action Protocol for personal injury claims is in place to ensure the parties involved in a claims process communicate properly with each other and seek a settlement before going to court. If claims do go to court, it means that all parties should have behaved properly. 

Here we look at what the Pre-Action Protocol is and the essential steps all parties need to take. 

What is the Pre-Action Protocol for personal injury claims? 

The Pre-Action Protocol for personal injury claims was first introduced on 6th April 2015. It sets out the steps the court expects the parties to take before issuing formal court proceedings for a personal injury claim. 

It is in place to: 

  •         Make sure all parties communicate openly with each other 
  •         Ensure all parties fully investigate all aspects of a claim and share all relevant information 
  •         Encourage the early use of medical treatment and or/rehabilitation for the claimant 
  •         Promote the use of alternative forms of dispute resolution – such as an early settlement – before issuing court proceedings 

Requirements for personal injury claims 

The Pre-Action Protocol for personal injury claims has a number of essential requirements and steps, including: 

The Letter of Notification 

The Letter of Notification informs the defendant or their insurance company that the claimant intends to make a claim. It’s important to include detailed information at this time relating to the nature of the claim, so the defendant or their insurer can respond appropriately. 

The defendant has 14 days to acknowledge the receipt of this letter. 

Rehabilitation 

Once the Letter of Notification has been acknowledged by the defendant, all parties need to address the immediate medical needs of the claimant. If the claimant seeks early treatment, they may be able to recover from their injuries sooner, which can reduce what the defendant will need to pay in damages. 

Letter of Claim 

The claimant will then send the Letter of Claim to the defendant and their insurer, which should include: 

  •         A summary of the facts of the case 
  •         The nature of the claimant’s injuries 
  •         The claimant’s medical needs and financial losses 

The insurer needs enough information to investigate the claim and the potential liability. They then have 21 days to acknowledge the Letter of Claim, and give an initial response naming the insurers. The claimant can issue court proceedings if they don’t get a response in 21 days. 

Following the defendant’s first response, they get three months to do the following: 

  •         Investigate the claim 
  •         Reply detailing whether or not they admit liability 

If the defendant denies liability, their response should include the reasons why. This must include how they view the accident and the reasons why it happened. Documentation should be provided to support this argument. 

Expert reports 

To support their personal injury claim, the claimant will need at least a medical report prepared by a medico-legal expert. Medical records from the claimant’s GP will be the starting point for this. 

In some cases, other expert reports may be needed, including: 

  •         Accident reconstruction experts 
  •         Engineering experts 

These reports must go to the insurers, who can choose to either agree with the reports or raise issues with them. 

 Disclosure of documents 

The claimant also needs to disclose any documents they have to support their claim. This will need to go to the defendant and the court. Examples of these documents may include: 

  •         Loss of earnings evidence 
  •         Receipts for medical care and travel expenses
  •         Evidence of other expenses like home and car modifications 
  •         Witness statements 

The defendant also has the opportunity to provide supporting documentation if they deny liability. Examples of this could include: 

  •         Witness statements 
  •         CCTV footage 
  •         Health and safety policies 
  •         Training records

Alternative dispute resolution 

The Pre-Action Protocol states that going to court should be a last resort, and both parties are encouraged to find alternative ways of settling the dispute before going to court. 

Options for alternative dispute resolution include: 

  •         Joint settlement meetings 
  •         Mediation 
  •         Arbitration 

Stocktake 

If a settlement still can’t be reached, all parties are encouraged to carry out a stocktake. This is where they review their individual positions and once again evaluate their arguments, taking in both strengths and weaknesses. 

Invitation for court proceedings 

Once the stocktake has been done, the claimant writes to the defendant (or their insurer) asking for the details of the solicitors they have nominated to accept service of the court proceedings. 

This needs to be done seven or 14 days before issuing court proceedings. 

Consequences of failing to follow protocol 

The protocol is in place to encourage early settlement and promote alternative forms of dispute resolution. Court proceedings should be the final option. 

If a case goes to court, the court will look at the behaviour of the parties during the Pre-Action Protocol. In some cases, both parties will follow the protocol by the letter but still can’t find an agreement. In this instance, the court will decide on the facts of the case. 

If the court finds that either party has failed to follow the protocol, they have the discretion to award financial penalties. For example, if one or more parties refuse to consider the use of mediation during the alternative dispute resolution stage of the process, the court can penalise them with costs. 

The more serious the breach of the protocol, the higher the potential cost penalties. 

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