What is a Pre-Action Disclosure Application (PAD)?
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The term 'disclosure' refers to the process in which the parties involved in a claim are given the opportunity to see each other’s documents and evidence prior to any trial commencing. The disclosure of documents is submitted by the personal injury solicitors on behalf of their clients.
As the name would suggest, pre action disclosure refers to the disclosure happening before proceedings have been formally issued. The reason for a pre action disclosure (PAD) is to try and encourage the early exchange of evidence and documents pertaining to the claim, which could be used to assess and agree upon liability before the claim reaches court – which can save everyone concerned a lot of time and money.
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What if the Defendant does not disclose information?
If either the Defendant or their insurance company do not respond to any correspondence relating to the claim, then what is known as a Pre-Action Discolsure Application can made to the Court requesting the court issues an Order to force the Defendant to disclose any and all documentation relevant to the claim.
Before a Pre-Action Disclosure Application can be made though, the Defendant must first be given notice that any further delays in responding to correspondence will result in a Pre-Action Disclosure application being made in order to prevent any further unnecessary delays.
What does a Pre-Action Disclosure application consist of?
In order to justify a PAD application and to avoid it being struck out of court, a full statement showing all of the previous correspondence between the two parties is required. This shows that the Claimant and their legal representatives have made every effort to get in touch with the Defendant to get them to disclose the relevant documentation before court action is brought.
A draft order which sets out all the documentation expected of the Defendant should be drawn up – which usually identifies information like insurance details, work medical records, risk assessment records etc… depending on the nature of the personal injury claim.
What if the Defendant is unable disclose the requested documentation?
If the Defendant does not have the requested documentation then they must respond to correspondence and explain the situation and why they do not have it. This could be because some or all of the requested documentation has been lot or destroyed, or that they simply do not have it.
If there is no response from the Defendant to the Court Order then the Claimant can make an application to the Court to endorse a penal notice onto the Order, which could have financial implications for the Defendant.
What does it cost to make a Pre-Action Disclosure application?
In order to make a PAD application there is a court fee to be paid by the Claimant. However, it is up to the Court to use its discretion to order the Defendant to pay the costs if it is clearly demonstrated that they have unreasonably delayed proceedings by not responding to the initial correspondence requesting disclosure.
A Court fee is payable – generally by the Claimant. The Court may use its discretion and order the Defendant to pay the costs if it believes he had unreasonably resisted the initial request for disclosure.
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