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Personal Injury Claims – Pre-Action Protocols

Friday, 30 November 2012

Any party who has been involved in litigation of any sort will know that it can be an expensive and time-consuming business. The introduction of the Civil Procedure Rules (CPR) aimed to reduce systematic inefficiencies in order to increase access to justice.

As the CPR have developed, certain areas of law that attract high volumes of claims have been reviewed in detail and procedures designed to help improve the way claims are managed from the outset. Litigants should aim to follow these additional guidelines which are known as pre-action protocols.

Protocol Aims for Personal Injury Cases
The stated aims of the personal injury pre-action protocol are as follows:

· More pre-action contact between the parties
· Better and earlier exchange of information
· Better pre-action investigation by both sides
· To place the parties in a better position to settle fairly and early without litigation
· To enable any litigation to that does occur to proceed efficiently in accordance with the court timetable
· To promote provision of medical or rehabilitation treatment to address the claimant’s needs

Broadly it is to standardise proceedings and increase predictability.

  1. A letter of claim should be sent to the defendant or the claimant’s insurer, the protocol provides a standard format. The letter should clearly set out the facts of the claim, the reasons for the defendant’s culpability, the nature of any injuries sustained and any financial loss incurred. Sufficient information should be provided for the defendant to commence investigations. The defendant or their insurers should respond to the claim within 21 days.
  2. Following a response to the letter, the defendant should then have 3 months to respond to the actual claim before the claimant issues proceedings. If this is not possible, for example where the claimant is near the end of a limitation period, then as much notice as possible of the intention to issue a claim should be given to the defendant and an extension of time or stay of proceedings might be requested of the court. In any event, if the defendant denies liability, he is encouraged to make early disclosure of relevant information.
  3. If experts are to be appointed such as medical practitioners, the protocol encourages joint access and appointment. However, due to the timing, provision is made for appointment of an expert by the claimant.
The pre-action protocols are only guides but the conduct of litigating parties can be taken into account when a court assesses damages so their importance should not be underestimated.

If you would like further information about personal injury law or wish to discuss a potential or current claim, we have experienced lawyers on hand who can advise you. Please contact Sarah Vincent by email or by telephone 020 7611 4848.