Master the Personal Injury Pre-action Protocol: Insider tips for Your Success.
The personal injury pre-action protocol lays down the way in which your personal injury claim is progressed and helps to ensure the parties follow a fair and streamlined process before any legal proceedings are commenced.
So what are the personal injury pre action protocol steps and why are they important if you are looking for compensation for your injuries?
The UK government introduced rules for the the personal injury pre-action (before litigation) protocol in order to ensure claims are handled fairly and effectively.
The various steps that are taken by the parties within the pre-action protocol are intended to highlight the importance of collaboration as well as communication.
The rules were designed and introduced for a number of reasons including:
- Resolving disputes without the need for personal injury cases to actually go to court;
- To promote the parties exchanging as much information as they have arising out of personal injury claims;
- To encourage early consideration to the Claimant’s medical condition and compliance with the rehabilitation code;
- To facilitate an opportunity for the parties to negotiate a settlement of the dispute at the earliest opportunity.
What’s the First Step for the Claimant and their Solicitor?
First of all the pre-action protocol requires the Claimant to send a letter of claim.
If the claim is a low value personal injury claim worth less than £25,000 then it is necessary to submit a “claim notification form to the online claims portal setting out prescribed information in relation to the claim.
What details are required in the Letter of Claim or Online Portal Notification form?
In general terms it is necessary to provide the following information in support of personal injury claims:
- The Claimant’s personal details including name and address;
- Details of the accident including the nature of the injuries sustained and the broad heads of loss including financial losses which are to be set out in detail at a later stage.
- Provide confirmation in relation to any rehabilitation that is sought.
- The reasons why the Claimant considers the Defendant was to blame for the accident.
- Initial photographs relating to the scene of the accident and injuries as appropriate.
What to expect after the Initial Submission of the Claim Notification?
After being notified of the personal injury claim under the pre-action rules, the Defendant or the Defendant’s insurance company has a 21 day period to acknowledge receipt.
Once the personal injury claim has been acknowledged under the pre action protocol the Defendant has a period of three months in which to investigate the claim and then they must either formally admit liability or deny responsibility for the claim.
If the Defendant denies liability then they are under a duty to fully explain their stance and provide any supporting documentation.
This could include risk assessments, training records and documents relating to any aspect of the Defendant’s liability or potential liability towards the Claimant.
Further Correspondence, Discussions and Negotiations
If the Defendant denies liability in full denial by the Defendant it’s then open for the Claimant’s solicitor to make a decision there and then and simply issue court proceedings.
Nevertheless, it is possible for the parties to engage in pre-action correspondence and discussions for a period of time in an effort to see whether they can resolve matters and reach a settlement before issuing court proceedings.
If the negotiations are not capable of resolving matters then the Claimant can always look to commence court proceedings with a view to the court adjudicating matters.
It’s worth knowing that in practice it’s not unusual for the Defendant insurance company to strongly deny liability and refuse to enter into negotiations. However, once they realise court proceedings have been started by the Claimant’s personal injury lawyers they may well come to the negotiating table.
Adhering to the Rehabilitation Code: Why It Matters?
The court rules place the parties under a duty to deal with any immediate medical treatment needs by reference to the code for rehabilitation.
The protocol for personal injury rules highlight the fact that consideration of rehabilitation options should be an ongoing process for both parties and throughout the whole of the protocol period.
Clearly the sooner the Claimant receives treatment for any ongoing injuries the better all round.
Rehabilitation should facilitate the Claimant’s recovery and in turn the defendant may not have to pay quite as much compensation if the Claimant recovers more quickly.
The Nuts and Bolts of the Code for Rehabilitation:
- The rehabilitation code involves putting in place and “immediate needs assessment” (INA) which is a broad exercise looking at all areas of the Claimant’s life.
- The assessment considers the ways in which, both physically and psychologically, the accident has had an impact upon the Claimant.
- The main emphasis of the rehabilitation is to establish what the Claimant is attempting to achieve and to provide a plan to put into effect those goals and with the defendant’s insurer providing funding for any recommended treatment.
- It needs to be appreciated that the defendant will only agree to financing an immediate needs assessment and rehabilitation generally if their insured was indeed in some way to blame for the accident.
- It’s also important to bear in mind that the rehabilitation can be implemented outside the pre action protocols so this means any evidence obtained through the pre action process cannot be referred to or relied upon by the Defendant in the court proceedings.
The Importance of full Disclosure of Documents following a Denial of Liability
If the defendant chooses to deny the claim then they are under a duty to disclose any relevant documents they possess or that are in their custody or power.
This could include documents which support their denial of the claim for instance items such as accident report forms, witness statements, medical records and photographs or CCTV footage.
It is important to highlight the fact that the defendant has an obligation to disclose all relevant documents not just the ones that support their denial of the claim.
For this reason the disclosure of documentation by the defendant following a denial is extremely important.
- Your solicitor needs to carefully assess and analyse all the documents that are disclosed to check to what extent they help or hinder the claim.
- In addition, and most importantly, your solicitor needs to consider whether there has been a full and frank disclosure of documents.
- The success of claims can very often hinge on the basis of the documentation which is disclosed. Unfortunately all too often insurers either through carelessness or otherwise fail to obtain all the salient information from the defendant has or the documents they have been provided with.
- In many claims there may well be a history of previous relevant accidents that are either not looked into by the insurer or worse still not disclosed intentionally in an effort to defeat the claim. These earlier accidents can be absolutely crucial in the context of liability.
- As a practice we have over the years won claims where full disclosure was not initially given by the insurer but as a result of putting them under pressure through correspondence, formal court applications for the disclosure of documents or otherwise we have obtained critical documentation which then resulted in the insurer finally dealing with the claim.
- You therefore need to know how experienced your solicitor is and whether he is committed to your claim by making all the necessary liability enquiries thereby giving you the best chances of success.
Alternative Dispute Resolution (ADR)
The pre action protocol for personal injury claims makes it clear that issuing court proceedings should only be carried out as a last resort with a view to saving costs and court time.
The personal injury protocol underlines the importance of the parties involved considering alternative dispute resolution as a way of avoiding formal legal proceedings.
If issuing court proceedings occurs without exploring the use of mediation through alternative dispute resolution then the court can penalise the parties if it is deemed that their conduct was unreasonable.
It’s worth remembering ADR is not compulsory but the Courts explicitly require the parties to explore ADR or to be able to say in what ways it is not suitable before formal court proceedings.
Expert Reports and the Pre-action Protocol
The rules relating to personal injury claims require the claimant’s solicitor to lodge a medical report if court proceedings are to be commenced.
It is possible in certain circumstances to settle a personal injury claim without a medical expert report before court proceedings are issued but Claimants must always be very wary and cautious about this approach in order to avoid being under compensated. Your solicitor will be able to advise you to minimise any risks and to make sure that your position is protected as far as possible.
In the ordinary course of events though your solicitor will organise at least one medical report and possibly several more depending on the nature and extent of the personal injury sustained.
The Role of Your Solicitor when Instructing the Right Experts
It’s clearly important that your solicitor takes the time to understand exactly what injuries you suffered in the accident and the medical treatment you have received to ensure that all aspects of the impact of the personal injury are dealt with by expert evidence.
This may mean that in addition to an orthopaedic consultant you will require an assessment from a psychologist if you have suffered an adverse psychological reaction to the way in which the accident happened.
Without the right sort of medical evidence and reports then there is a real danger that the full effects of the accident is not properly considered by the parties or the court leading to a shortfall in compensation.
In some instances it is also necessary for non-medical experts to be appointed to assist the courts with dealing with the liability issues. For example an engineer or accident reconstruction expert could be instructed to provide expert opinion in relation to the likely cause of the accident.
What if the rules relating to the Pre action Protocol for Personal Injury Claims are breached?
The pre-action protocol rules are not mandatory but it’s always important to follow them as a failure to comply with the rules may well result in cost penalties potentially for either side depending on who breached the rules.
When deciding upon the nature of the penalty the court will consider the behaviour of the defaulting party, how significant the breach is in the overall grand scheme of things and what impact it had on the other party.
The rules underline the importance of both parties acting reasonably and proportionately so as not to incur unjustified expenses.
In summary the personal injury pre-action protocol steps seek to ensure that claims are dealt with in a fair and efficient manner.
By adhering to the rules the parties can look to agree terms and sidestep the need to proceed to a final court hearing thereby avoiding the time and expense of a trial.
How a No Win No Fee solicitor could Help You with Navigating the Pre-action Protocol?
It’s clear from our account of the rules above that in order to achieve the best result it is necessary to instruct a solicitor who can provide expert guidance and representation throughout the whole process under a genuine no win no fee agreement.
- In particular a no win no fee solicitor should not charge any upfront fees and there should certainly be no hidden costs Win or lose.
- It’s vital that if you want to come away with a good result and this may mean succeeding with your claim in the first instance, that you instruct a solicitor who can help you gather and present evidence, negotiate hard with the defendants insurers and represent you in court if this becomes necessary.
- There is no substitute for experience and this needs to be backed up in online reviews and the overall reputation of a firm dealing with their clients in a sympathetic and proactive way. You want to be as sure as you can be that your claim will be dealt with efficiently and effectively.
- There are many hurdles that a claimant personal injury victim needs to overcome in order to recover the compensation they deserve and therefore your decision about which solicitor you choose to represent you is an important one.
Our very experienced team of solicitors have a long and proven track record of securing fantastic results for clients who have suffered physical, emotional, and financial harm by the negligence of others.
Whatever type of accident you have suffered we are here to help you get back on your feet and move forward with your life.
Contact us today so we can help you get the result that you really deserve 🙂
Carter & Carter Solicitors
Hear a few words from one of our happy clients
“My claim was dealt with quickly and I found Chris Carter very professional and approachable. He kept me informed of the progress of my claim at every stage. I received a positive outcome and am very grateful for the pleasant efficient manner in which I was dealt with.
K Brady from West Lothian