Personal Injury Protocol Explained
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The personal injury Pre-Action Protocol is designed to help two parties settle their claim without the need to go to court. If, after following the guidelines, the parties are not able to settle their claim, then court proceedings can begin.
The main objectives of the Pre-Action Protocol are as follows:
- For both parties to have more contact with each other before any court proceedings begin
- For both parties to exchange all the relevant information
- For both parties to understand each other’s case
- For any investigations to be made following any allegations
There are two main points for having the protocol in place – to help encourage an early settlement without the need to go to court, but also to make sure any case being brought to court is well researched and documented, allowing for a quick and efficient settlement.
Personal Injury Pre-Action Protocol
The Pre-Action Protocol is broken down into the following steps:
Step 1 – Early Notification
Step 2 – The letter of claim
Step 3 – Preliminary response
Step 4 – Investigation
Step 5 – Special damages
Step 6 – Experts
Step 7 – Rehabilitation
Step 8 – Resolution of issues
Step 9 – failure to comply
The first step of the Pre-Action Protocol states that the legal representative of the claimant should notify the defendant as soon as they know that a claim is going to be made. This notification should come before a detailed letter of the claim is sent to the defendant and/or their insurer.
The main point in this step is to help the defendant acknowledge the claim.
The letter of claim
After notifying the opposing party about the claim, a detailed letter must then be sent to the defendant, with an additional copy being sent to their insurers. The letter should include a clear summary of the claim, a description of the injuries sustained by the claimant and a description of any losses incurred by the claimant as a result of the injury.
This letter will allow the defendant and their solicitor to fully investigate the claim and assess liability and the potential value.
After the detailed letter has been sent, the defendant has 21 days to issue a response. The preliminary response should include any information relating to the claim which the defendant feels is missing and is important to the claim.
If the defendant denies the claim, their version of events should be supplied in as much detail as possible.
If the defendant or their insurers fail to acknowledge the letter of claim, the claimant is entitled to proceed with court proceedings.
When the defendant has issued the preliminary response, they have a maximum of three months to investigate the claim and determine whether or not they are liable.
After three months, a reply should be made to the claimant stating whether or not they are accepting liability, and if not, what the reasons for dispute are.
The claimant is required to send a Schedule of Special Damages to the defendant as early as possible which includes any supporting documents related to the claim. If the amount of damages is set to change during the case proceedings, the claimant should state so.
With personal injury claims, the appointment of experts usually relates to medical experts who should provide a full medical report on the claimant’s injuries.
Either party can appoint an expert and this can differ from claim to claim. Whichever party do so will be liable to pay for the experts costs.
Before either party appoints an expert, they should provide a list of one or more potential experts to their opposing party which they feel are suitable for the role. If the opposing party objects to employing these experts, they have 14 days to give notice. It is ideal to instruct an expert who is mutually accepted by both parties. If this mutual decision cannot be made, a party may instruct an expert of their choice.
The party not responsible for the expert should be given the chance to pose any questions they may have,
The claimant’s injuries may mean that he/she requires rehabilitation treatment. This should be considered by the claimant and/or the defendant at the earliest opportunity.
Resolution of issues
If the defendant has admitted liability, the claimant must delay any proceedings for 21 days. During this time, both parties must consider a settlement.
Failure to comply with the personal injury Pre-Action Protocol
If any party involved in a claim fails to comply with the Pre-Action Protocol, the court have the power to impose sanctions such as, which all could be extremely expensive to the infringing party. The sanctions may include:
- suspending the proceeding of the claim until the Protocol has been followed correctly
- ordering the infringing party to pay the other party’s costs
- ordering the infringing party to pay the other party’s costs on an ‘indemnity’ basis
- depriving a successful claimant of a part of the interest they would have received
- depriving a successful claimant of all of the interest they would have received
- awarding a higher rate of interest to a successful claimant (if the defendant has failed to comply)