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Pre-Action Protocol Amendments
The new Pre-Action Protocols and Amendments to the existing Pre-Action Protocol are approved by the Master of the Rolls as Head of Civil Justice.
The new Practice Directions and the amendments to the existing Practice Directions, and the new Pre-Action Protocols and the amendments to the existing Pre-Action Protocol come into force as follows—
The Pre-Action Protocol for Personal Injury Claims 6 April 2015 The Pre-Action Protocol for the Resolution of Clinical Disputes 6 April 2015 The Pre-Action Protocol for Professional Negligence 6 April 2015 The Pre-Action Protocol for Judicial Review 6 April 2015 The Pre-Action Protocol for Housing Disrepair Cases 6 April 2015 The Pre-Action Protocol for Possession Claims by Social Landlords
6 April 2015
The Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property
6 April 2015
The Pre-Action Protocol for Low Value Personal Injury (Employers Liability And Public Liability) Claims
6 April 2015
The Right Honourable The Lord Dyson Master of the Rolls and Head of Civil Justice
THE PRE-ACTION PROTOCOL FOR LOW VALUE PERSONAL INJURY
(EMPLOYERS LIABILITY AND PUBLIC LIABILITY) CLAIMS
1) In paragraph 7.58, for “paragraphs 7.54 or 7.56” substitute “paragraphs 7.55 or 7.57”.
PRE-ACTION CONDUCT AND PROTOCOLS
Table of contents INTRODUCTION PARA. 1 OBJECTIVES OF PRE-ACTION CONDUCT AND PROTOCOLS PARA. 3 PROPORTIONALITY PARA. 4 STEPS BEFORE ISSUING A CLAIM AT COURT PARA. 6 EXPERTS PARA. 7 SETTLEMENT AND ADR PARA. 8 STOCKTAKE AND LIST OF ISSUES PARA. 12 COMPLIANCE WITH THIS PRACTICE DIRECTION AND THE PROTOCOLS
PARA. 13
LIMITATION PARA. 17
PROTOCOLS IN FORCE PARA. 18
INTRODUCTION
- Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. They are approved by the Master of the Rolls and are annexed to the Civil Procedure Rules (CPR). (The current pre-action protocols are listed in paragraph 18.)
- This Practice Direction applies to disputes where no pre-action protocol approved by the Master of the Rolls applies.
OBJECTIVES OF PRE-ACTION CONDUCT AND PROTOCOLS
- Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—
(a) understand each other’s position; (b) make decisions about how to proceed; (c) try to settle the issues without proceedings; (d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement; (e) support the efficient management of those proceedings; and (f) reduce the costs of resolving the dispute.
the fees recoverable. Many disputes can be resolved without expert advice or evidence. If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.
SETTLEMENT AND ADR
- Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
- Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.
- Parties may negotiate to settle a dispute or may use a form of ADR including—
(a) mediation, a third party facilitating a resolution; (b) arbitration, a third party deciding the dispute; (c) early neutral evaluation, a third party giving an informed opinion on the dispute; and (d) Ombudsmen schemes.
(Information on mediation and other forms of ADR is available in the Jackson ADR Handbook (available from Oxford University Press) or at—
http://www.civilmediation.justice.gov.uk/ http://www.adviceguide.org.uk/england/law_e/law_legal_system_e/law_ta king_legal_action_e/alternatives_to_court.htm)
- If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
STOCKTAKE AND LIST OF ISSUES
- Where a dispute has not been resolved after the parties have followed a pre- action protocol or this Practice Direction, they should review their respective positions. They should consider the papers and the evidence to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings.
COMPLIANCE WITH THIS PRACTICE DIRECTION AND THE PROTOCOLS
- If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. The court will take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)). The court will consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction).
- The court may decide that there has been a failure of compliance when a party has—
(a) not provided sufficient information to enable the objectives in paragraph 3 to be met; (b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or (c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
- Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that:
(a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction; (b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction; (c) sanctions are to be applied.
Judicial Review 6 April 2015 Disease and Illness 8 December 2003 Housing Disrepair 6 April 2015 Possession Claims by Social Landlords 6 April 2015 Possession Claims for Mortgage Arrears 6 April 2015 Dilapidation of Commercial Property 1 January 2012 Low Value Personal Injury Road Traffic Accident Claims
30 April 2010 extended from 31 July 2013 Low Value Personal Injury Employers’ and Public Liability Claims
31 July 2013”
“ THE PRE-ACTION PROTOCOL FOR PERSONAL INJURY CLAIMS
Contents Title Number Introduction 1
Early issue 1. Litigants in Person 1. Overview of Protocol – General Aim 2 The Protocol 3 Letter of Notification 3.
Rehabilitation 4
Letter of Claim 5 Status of Letters of Claim and Response 5. Letter of Response 6 Disclosure 7 Documents 7. Experts 7. Negotiations Following an Admission 8 Alternative Dispute Resolution 9 Quantification of Loss – Special Damages 10 Stocktake 11 Annexes ILLUSTRATIVE FLOW CHART A TEMPLATES FOR LETTERS OF CLAIM AND RESPONSE B STANDARD DISCLOSURE LISTS C TEMPLATE FOR LETTERS OF INSTRUCTION TO MEDICAL EXPERT D
1. Introduction
1.1.1 This Protocol is primarily designed for personal injury claims which are likely to be allocated to the fast track and to the entirety of those claims: not only to the personal injury element of a claim which also includes, for instance, property damage. It is not intended to apply to claims which proceed under— (a) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013;
and proceedings are subsequently issued, the court will expect an explanation as to why the Protocol has not been followed, or has been varied.
Where either party fails to comply with this Protocol, the court may impose sanctions. When deciding whether to do so, the court will look at whether the parties have complied in substance with the relevant principles and requirements. It will also consider the effect any non-compliance has had on another party. It is not likely to be concerned with minor or technical shortcomings (see paragraphs 13 to 15 of the Practice Direction on Pre-Action Conduct and Protocols).
Early Issue
The Protocol recommends that a defendant be given three months to investigate and respond to a claim before proceedings are issued. This may not always be possible, particularly where a claimant only consults a legal representative close to the end of any relevant limitation period. In these circumstances, the claimant’s solicitor should give as much notice of the intention to issue proceedings as is practicable and the parties should consider whether the court might be invited to extend time for service of the claimant’s supporting documents and for service of any defence, or alternatively, to stay the proceedings while the recommended steps in the Protocol are followed.
Litigants in Person
If a party to the claim does not have a legal representative they should still, in so far as reasonably possible, fully comply with this Protocol. Any reference to a claimant in this Protocol will also mean the claimant’s legal representative
2. Overview of Protocol – General Aim
The Protocol’s objectives are to—
(a) encourage the exchange of early and full information about the dispute;
(b) encourage better and earlier pre-action investigation by all parties; (c) enable the parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced; (d) support the just, proportionate and efficient management of proceedings where litigation cannot be avoided; and (e) promote the provision of medical or rehabilitation treatment (not just in high value cases) to address the needs of the Claimant at the earliest possible opportunity.
3. The Protocol
An illustrative flow chart is attached at Annexe A which shows each of the steps that the parties are expected to take before the commencement of proceedings.
Letter of Notification
The claimant or his legal representative may wish to notify a defendant and/or the insurer as soon as they know a claim is likely to be made, but before they are able to send a detailed Letter of Claim, particularly, for instance, when the defendant has no or limited knowledge of the incident giving rise to the claim, or where the claimant is incurring significant expenditure as a result of the accident which he hopes the defendant might pay for, in whole or in part.
The Letter of Notification should advise the defendant and/or the insurer of any relevant information that is available to assist with determining issues of liability / suitability of the claim for an interim payment and/or early rehabilitation.
If the claimant or his legal representative gives notification before sending a Letter of Claim, it will not start the timetable for the Letter of Response. However the Letter of Notification should be acknowledged within 14 days of receipt.
4. Rehabilitation
The Letter of Claim should include the information described on the template at Annexe B1. The level of detail will need to be varied to suit the particular circumstances. In all cases there should be sufficient information for the defendant to assess liability and to enable the defendant to estimate the likely size and heads of the claim without necessarily addressing quantum in detail.
The letter should contain a clear summary of the facts on which the claim is based together with an indication of the nature of any injuries suffered, and the way in which these impact on the claimant’s day to day functioning and prognosis. Any financial loss incurred by the claimant should be outlined with an indication of the heads of damage to be claimed and the amount of that loss, unless this is impracticable.
Details of the claimant’s National Insurance number and date of birth should be supplied to the defendant’s insurer once the defendant has responded to the Letter of Claim and confirmed the identity of the insurer. This information should not be supplied in the Letter of Claim.
Where a claim no longer continues under either low value protocol, the CNF completed by the claimant under those protocols can be used as the Letter of Claim under this Protocol unless the defendant has notified the claimant that there is inadequate information in the CNF.
Once the claimant has sent the Letter of Claim no further investigation on liability should normally be carried out within the Protocol period until a response is received from the defendant indicating whether liability is disputed.
Status of Letters of Claim and Response
Letters of Claim and Response are not intended to have the same formal status as a statement of case in proceedings. It would not be consistent with the spirit of the
Protocol for a party to ‘take a point’ on this in the proceedings, provided that there was no obvious intention by the party who changed their position to mislead the other party.
6. The Response
Attached at Annexe B2 is a template for the suggested contents of the Letter of Response: the level of detail will need to be varied to suit the particular circumstances.
The defendant must reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any). If the insurer is aware of any significant omissions from the letter of claim they should identify them specifically. Similarly, if they are aware that another defendant has also been identified whom they believe would not be a correct defendant in any proceedings, they should notify the claimant without delay, with reasons, and in any event by the end of the Response period. Where there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings. Compliance with this paragraph will be taken into account on the question of any assessment of the defendant’s costs.
The defendant (insurer) will have a maximum of three months from the date of acknowledgment of the Letter of Claim (or of the CNF where the claim commenced in a portal) to investigate. No later than the end of that period, The defendant (insurer) should reply by no later than the end of that period, stating if liability is admitted by admitting that the accident occurred, that the accident was caused by the defendant’s breach of duty, and the claimant suffered loss and there is no defence under the Limitation Act 1980.
Where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the time periods of 21 days and three months should normally be extended up to 42 days and six months.
7.1.4 The protocol should also contain a requirement that the defendant is under a duty to preserve the disclosure documents and other evidence (CCTV for example). If the documents are destroyed, this could be an abuse of the court process.
Experts
Save for cases likely to be allocated to the multi-track, the Protocol encourages joint selection of, and access to, quantum experts, and, on occasion liability experts e.g. engineers. The expert report produced is not a joint report for the purposes of CPR Part 35. The Protocol promotes the practice of the claimant obtaining a medical report, disclosing it to the defendant who then asks questions and/or agrees it and does not obtain their own report. The Protocol provides for nomination of the expert by the claimant in personal injury claims.
Before any party instructs an expert, they should give the other party a list of the name (s) of one or more experts in the relevant speciality whom they consider are suitable to instruct.
Some solicitors choose to obtain medical reports through medical agencies, rather than directly from a specific doctor or hospital. The defendant’s prior consent to this should be sought and, if the defendant so requests, the agency should be asked to provide in advance the names of the doctor(s) whom they are considering instructing.
Where a medical expert is to be instructed, the claimant’s solicitor will organise access to relevant medical records – see specimen letter of instruction at Annexe D.
Within 14 days of providing a list of experts the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert assuming there is one (this is not the same as a joint expert). It must be emphasised that when the claimant nominates an expert in the original Letter of Claim, the defendant has a further 14 days to object to one or more
of the named experts after expiration of the 21 day period within which they have to reply to the Letter of Claim, as set out in paragraph 6.2.
If the defendant objects to all the listed experts, the parties may then instruct experts of their own choice. It will be for the court to decide, subsequently and if proceedings are issued, whether either party had acted unreasonably.
If the defendant does not object to an expert nominated by the claimant, they shall not be entitled to rely on their own expert evidence within that expert’s area of expertise unless—
(a) the claimant agrees; (b) the court so directs; or (c) the claimant’s expert report has been amended and the claimant is not prepared to disclose the original report.
Any party may send to an agreed expert written questions on the report, via the first party’s solicitors. Such questions must be put within 28 days of service of the expert’s report and must only be for the purpose of clarification of the report. The expert should send answers to the questions simultaneously to each party.
The cost of a report from an agreed expert will usually be paid by the instructing first party: the costs of the expert replying to questions will usually be borne by the party which asks the questions.
If necessary, after proceedings have commenced and with the permission of the court, the parties may obtain further expert reports. It would be for the court to decide whether the costs of more than one expert's report should be recoverable.
(a) discussions and negotiation (which may or may not include making Part 36 Offers or providing an explanation and/or apology); (b) mediation, a third party facilitating a resolution; (c) arbitration, a third party deciding the dispute; and (d) early neutral evaluation, a third party giving an informed opinion on the dispute.
9.1.3 If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR but unreasonable refusal to consider ADR will be taken into account by the court when deciding who bears the costs of the proceedings
Information on mediation and other forms of ADR is available in the Jackson ADR Handbook (available from Oxford University Press) or at—
http://www.civilmediation.justice.gov.uk/ http://www.adviceguide.org.uk/england/law_e/law_legal_system_e/law_ta king_legal_action_e/alternatives_to_court.htm
10. Quantification of Loss - Special damages
In all cases, if the defendant admits liability, the claimant will send to the defendant as soon as reasonably practicable a schedule of any past and future expenses and losses which he claims, even if the schedule is necessarily provisional. The schedule should contain as much detail as reasonably practicable and should identify those losses that are ongoing. If the schedule is likely to be updated before the case is concluded, it should say so. The claimant should keep the defendant informed as to the rate at which his financial loss is progressing throughout the entire Protocol period.
11. Stocktake
Where the procedure set out in this Protocol has not resolved the dispute between the parties, each party should undertake a review of its own positions and the
strengths and weaknesses of its case. The parties should then together consider the evidence and the arguments in order to see whether litigation can be avoided or, if that is not possible, for the issues between the parties to be narrowed before proceedings are issued. Where the defendant is insured and the pre-action steps have been taken by the insurer, the insurer would normally be expected to nominate solicitors to act in the proceedings and to accept service of the claim form and other documents on behalf of the defendant. The claimant or their solicitor is recommended to invite the insurer to nominate the insurer to nominate solicitors to act in the proceedings and do so 7 to 14 days before the intended issue date.
