Pre-Action Protocol for Personal Injury Claims: A Guide for Letters of Claim and Response, Schemes and Mind Maps of Civil procedure

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Pre-Action Protocol for Personal Injury Claims Contents 1 Introduction 2 Notes of guidance 3 The protocol 4 Rehabilitation 5 Resolution of issues A Letter of claim B Pre-action personal injury protocol standard disclosure lists C Letter of instruction to medical expert D The rehabilitation code 1 Introduction 1.1 Lord Woolf in his final Access to Justice Report of July 1996 recommended the development of pre-action protocols: To build on and increase the benefits of early but well informed settlement which genuinely satisfy both parties to dispute. 1.2 The aims of pre-action protocols are: . more pre-action contact between the parties . better and earlier exchange of information . better pre-action investigation by both sides . to put the parties in a position where they may be able to settle cases fairly and early without litigation . to enable proceedings to run to the court’s timetable and efficiently, if litigation does become necessary . to promote the provision of medical or rehabilitation treatment (not just in high value cases) to address the needs of the claimant 1.3 The concept of protocols is relevant to a range of initiatives for good litigation and pre- litigation practice, especially: . predictability in the time needed for steps pre-proceedings . standardisation of relevant information, including documents to be disclosed. PROTOCOLS CIVIL PROCEDURE RULES Pre-Action Protocol for Personal Injury Claims page 1 PROTOCOLS APRIL 2007 1.4 The Courts will be able to treat the standards set in protocols as the normal reasonable approach to pre-action conduct. If proceedings are issued, it will be for the court to decide whether non-compliance with a protocol should merit adverse consequences. Guidance on the court’s likely approach will be given from time to time in practice directions. 1.5 If the court has to consider the question of compliance after proceedings have begun, it will not be concerned with minor infringements, e.g. failure by a short period to provide relevant information. One minor breach will not exempt the ‘innocent’ party from following the protocol. The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions. 2 Notes of guidance 2.1 The protocol has been kept deliberately simple to promote ease of use and general acceptability. The notes of guidance which follows relate particularly to issues which arose during the piloting of the protocol. Scope of the Protocol 2.2 This protocol is intended to apply to all claims which include a claim for personal injury (except those claims covered by the Clinical Disputes and Disease and Illness Protocols) and to the entirety of those claims: not only to the personal injury element of a claim which also includes, for instance, property damage. 2.3 This protocol is primarily designed for those road traffic, tripping and slipping and accident at work cases which include an element of personal injury with a value of less than £15,000 which are likely to be allocated to the fast track. This is because time will be of the essence, after proceedings are issued, especially for the defendant, if a case is to be ready for trial within 30 weeks of allocation. Also, proportionality of work and costs to the value of what is in dispute is particularly important in lower value claims. For some claims within the value ‘scope’ of the fast track some flexibility in the timescale of the protocol may be necessary, see also paragraph 3.8. 2.4 However, the ‘cards on the table’ approach advocated by the protocol is equally appropriate to higher value claims. The spirit, if not the letter of the protocol, should still be followed for multi-track type claims. In accordance with the sense of the civil justice reforms, the court will expect to see the spirit of reasonable pre-action behaviour applied in all cases, regardless of the existence of a specific protocol. In particular with regard to personal injury cases worth more than £15,000, with a view to avoiding the necessity of proceedings parties are expected to comply with the protocol as far as possible e.g. in respect of letters before action, exchanging information and documents and agreeing experts. 2.5 The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case. Where one or both parties consider the detail of the protocol is not appropriate to the case, and proceedings are CIVIL PROCEDURE RULES page 2 Pre-Action Protocol for Personal Injury Claims Protocols APRIL 2007 2.17 It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation: . Discussion and negotiation. . Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of personal injury or an individual experienced in the subject matter of the claim). . Mediation – a form of facilitated negotiation assisted by an independent neutral party. 2.18 The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists a number of organisations that provide alternative dispute resolution services. 2.19 It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR. Stocktake 2.20 Where a claim is not resolved when the protocol has been followed, the parties might wish to carry out a ‘stocktake’ of the issues in dispute, and the evidence that the court is likely to need to decide those issues, before proceedings are started. Where the defendant is insured and the pre-action steps have been conducted by the insurer, the insurer would normally be expected to nominate solicitors to act in the proceedings and the claimant’s solicitor is recommended to invite the insurer to nominate solicitors to act in the proceedings and do so 7–14 days before the intended issue date. 3 The protocol Letter of claim 3.1 The claimant shall send to the proposed defendant two copies of a letter of claim, immediately sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail. One copy of the letter is for the defendant, the second for passing on to his insurers. 3.2 The letter shall 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 of any financial loss incurred. In cases of road traffic accidents, the letter should provide the name and address of the hospital where treatment has been obtained and the claimant’s hospital reference number. Where the case is funded by a conditional fee agreement (or collective conditional fee agreement), notification should be given of the existence of the agreement and where appropriate, that there is a success fee and/or insurance premium, although not the level of the success fee or premium. CIVIL PROCEDURE RULES Pre-Action Protocol for Personal Injury Claims page 5 PROTOCOLS APRIL 2007 3.3 Solicitors are recommended to use a standard format for such a letter – an example is at Annex A: this can be amended to suit the particular case. 3.4 The letter should ask for details of the insurer and that a copy should be sent by the proposed defendant to the insurer where appropriate. If the insurer is known, a copy shall be sent directly to the insurer. 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. 3.5 Sufficient information should be given in order to enable the defendant’s insurer/solicitor to commence investigations and at least put a broad valuation on the ‘risk’. 3.6 The defendant should reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any) and, if necessary, identifying specifically any significant omissions from the letter of claim. If there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings. 3.7 The defendant (’s insurers) will have a maximum of three months from the date of acknowledgment of the claim to investigate. No later than the end of that period the defendant (insurer) shall reply, stating whether liability is denied and, if so, giving reasons for their denial of liability including any alternative version of events relied upon. 3.8 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. 3.9 Where the claimant’s investigation indicates that the value of the claim has increased to more than £15,000 since the letter of claim, the claimant should notify the defendant as soon as possible. Documents 3.10 If the defendant denies liability, he should enclose with the letter of reply, documents in his possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings. 3.11 Attached at Annex B are specimen, but non-exhaustive, lists of documents likely to be material in different types of claim. Where the claimant’s investigation of the case is well advanced, the letter of claim could indicate which classes of documents are considered relevant for early disclosure. Alternatively these could be identified at a later stage. 3.12 Where the defendant admits primary liability, but alleges contributory negligence by the claimant, the defendant should give reasons supporting those allegations and disclose those documents from Annex B which are relevant to the issues in dispute. The claimant should respond to the allegations of contributory negligence before proceedings are issued. CIVIL PROCEDURE RULES page 6 Pre-Action Protocol for Personal Injury Claims Protocols APRIL 2007 3.13 No charge will be made for providing copy documents under the Protocol. Special damages 3.14 The claimant will send to the defendant as soon as practicable a Schedule of Special Damages with supporting documents, particularly where the defendant has admitted liability. Experts 3.15 Before any party instructs an expert he should give the other party a list of the name (s) of one or more experts in the relevant speciality whom he considers are suitable to instruct. 3.16 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 Annex C. 3.17 Within 14 days 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 (which is not the same as a joint expert). It must be emphasised that if the Claimant nominates an expert in the original letter of claim, the defendant has 14 days to object to one or more of the named experts after expiration of the period of 21 days within which he has to reply to the letter of claim, as set out in paragraph 3.6. 3.18 If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably. 3.19 If the second party does not object to an expert nominated, he shall not be entitled to rely on his own expert evidence within that particular speciality unless: (a) the first party agrees, (b) the court so directs, or (c) the first party’s expert report has been amended and the first party is not prepared to disclose the original report. 3.20 Either party may send to an agreed expert written questions on the report, relevant to the issues, via the first party’s solicitors. The expert should send answers to the questions separately and directly to each party. 3.21 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. 4 Rehabilitation 4.1 The claimant or the defendant or both shall consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures. CIVIL PROCEDURE RULES Pre-Action Protocol for Personal Injury Claims page 7 PROTOCOLS APRIL 2007 B Pre-action personal injury protocol standard disclosure lists FAST TRACK DISCLOSURE RTA CASES SECTION A In all cases where liability is at issue – (i) Documents identifying nature, extent and location of damage to defendant’s vehicle where there is any dispute about point of impact. (ii) MOT certificate where relevant. (iii) Maintenance records where vehicle defect is alleged or it is alleged by defendant that there was an unforeseen defect which caused or contributed to the accident. SECTION B Accident involving commercial vehicle as defendant – (i) Tachograph charts or entry from individual control book. (ii) Maintenance and repair records required for operators’ licence where vehicle defect is alleged or it is alleged by defendant that there was an unforeseen defect which caused or contributed to the accident. SECTION C Cases against local authorities where highway design defect is alleged. (i) Documents produced to comply with Section 39 of the Road Traffic Act 1988 in respect of the duty designed to promote road safety to include studies into road accidents in the relevant area and documents relating to measures recommended to prevent accidents in the relevant area. HIGHWAY TRIPPING CLAIMS Documents from Highway Authority for a period of 12 months prior to the accident – (i) Records of inspection for the relevant stretch of highway. (ii) Maintenance records including records of independent contractors working in relevant area. (iii) Records of the minutes of Highway Authority meetings where maintenance or repair policy has been discussed or decided. (iv) Records of complaints about the state of highways. (v) Records of other accidents which have occurred on the relevant stretch of highway. WORKPLACE CLAIMS (i) Accident book entry. (ii) First aider report. (iii) Surgery record. (iv) Foreman/supervisor accident report. CIVIL PROCEDURE RULES page 10 Pre-Action Protocol for Personal Injury Claims Protocols APRIL 2007 (v) Safety representatives accident report. (vi) RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations) report to HSE. (vii) Other communications between defendants and HSE. (viii)Minutes of Health and Safety Committee meeting(s) where accident/matter considered. (ix) Report to DSS. (x) Documents listed above relative to any previous accident/matter identified by the claimant and relied upon as proof of negligence. (xi) Earnings information where defendant is employer. Documents produced to comply with requirements of the Management of Health and Safety at Work Regulations 1992 – (i) Pre-accident Risk Assessment required by Regulation 3. (ii) Post-accident Re-Assessment required by Regulation 3. (iii) Accident Investigation Report prepared in implementing the requirements of Regulations 4, 6 and 9. (iv) Health Surveillance Records in appropriate cases required by Regulation 5. (v) Information provided to employees under Regulation 8. (vi) Documents relating to the employees health and safety training required by Regulation 11. WORKPLACE CLAIMS – DISCLOSURE WHERE SPECIFIC REGULATIONS APPLY SECTION A – Workplace (Health Safety and Welfare) Regulations 1992 (i) Repair and maintenance records required by Regulation 5. (ii) Housekeeping records to comply with the requirements of Regulation 9. (iii) Hazard warning signs or notices to comply with Regulation 17 (Traffic Routes). SECTION B – Provision and Use of Work Equipment Regulations 1998 (i) Manufacturers’ specifications and instructions in respect of relevant work equipment establishing its suitability to comply with Regulation 5. (ii) Maintenance log/maintenance records required to comply with Regulation 6. (iii) Documents providing information and instructions to employees to comply with Regulation 8. (iv) Documents provided to the employee in respect of training for use to comply with Regulation 9. (v) Any notice, sign or document relied upon as a defence to alleged breaches of Regulations 14 to 18 dealing with controls and control systems. (vi) Instruction/training documents issued to comply with the requirements of regulation 22 insofar as it deals with maintenance operations where the machinery is not shut down. (vii) Copies of markings required to comply with Regulation 23. (viii)Copies of warnings required to comply with Regulation 24. SECTION C – Personal Protective Equipment at Work Regulations 1992 (i) Documents relating to the assessment of the Personal Protective Equipment to comply with Regulation 6. (ii) Documents relating to the maintenance and replacement of Personal Protective Equipment to comply with Regulation 7. CIVIL PROCEDURE RULES Pre-Action Protocol for Personal Injury Claims page 11 PROTOCOLS APRIL 2007 (iii) Record of maintenance procedures for Personal Protective Equipment to comply with Regulation 7. (iv) Records of tests and examinations of Personal Protective Equipment to comply with Regulation 7. (v) Documents providing information, instruction and training in relation to the Personal Protective Equipment to comply with Regulation 9. (vi) Instructions for use of Personal Protective Equipment to include the manufacturers’ instructions to comply with Regulation 10. SECTION D – Manual Handling Operations Regulations 1992 (i) Manual Handling Risk Assessment carried out to comply with the requirements of Regulation 4(1)(b)(i). (ii) Re-assessment carried out post-accident to comply with requirements of Regulation 4(1)(b)(i). (iii) Documents showing the information provided to the employee to give general indications related to the load and precise indications on the weight of the load and the heaviest side of the load if the centre of gravity was not positioned centrally to comply with Regulation 4(1)(b)(iii). (iv) Documents relating to training in respect of manual handling operations and training records. SECTION E – Health and Safety (Display Screen Equipment) Regulations 1992 (i) Analysis of work stations to assess and reduce risks carried out to comply with the requirements of Regulation 2. (ii) Re-assessment of analysis of work stations to assess and reduce risks following development of symptoms by the claimant. (iii) Documents detailing the provision of training including training records to comply with the requirements of Regulation 6. (iv) Documents providing information to employees to comply with the requirements of Regulation 7. SECTION F – Control of Substances Hazardous to Health Regulations 1999 (i) Risk assessment carried out to comply with the requirements of Regulation 6. (ii) Reviewed risk assessment carried out to comply with the requirements of Regulation 6. (iii) Copy labels from containers used for storage handling and disposal of carcinogenics to comply with the requirements of Regulation 7(2A)(h). (iv) Warning signs identifying designation of areas and installations which may be contaminated by carcinogenics to comply with the requirements of Regulation 7(2A)(h). (v) Documents relating to the assessment of the Personal Protective Equipment to comply with Regulation 7(3A). (vi) Documents relating to the maintenance and replacement of Personal Protective Equipment to comply with Regulation 7(3A). (vii) Record of maintenance procedures for Personal Protective Equipment to comply with Regulation 7(3A). (viii)Records of tests and examinations of Personal Protective Equipment to comply with Regulation 7(3A). CIVIL PROCEDURE RULES page 12 Pre-Action Protocol for Personal Injury Claims Protocols APRIL 2007 C Letter of instruction to medical expert Dear Sir, Re: (Name and Address) D.O.B. – Telephone No. – Date of Accident – We are acting for the above named in connection with injuries received in an accident which occurred on the above date. The main injuries appear to have been (main injuries). We should be obliged if you would examine our Client and let us have a full and detailed report dealing with any relevant pre-accident medical history, the injuries sustained, treatment received and present condition, dealing in particular with the capacity for work and giving a prognosis. It is central to our assessment of the extent of our Client’s injuries to establish the extent and duration of any continuing disability. Accordingly, in the prognosis section we would ask you to specifically comment on any areas of continuing complaint or disability or impact on daily living. If there is such continuing disability you should comment upon the level of suffering or inconvenience caused and, if you are able, give your view as to when or if the complaint or disability is likely to resolve. Please send our Client an appointment direct for this purpose. Should you be able to offer a cancellation appointment please contact our Client direct. We confirm we will be responsible for your reasonable fees. We are obtaining the notes and records from our Client’s GP and Hospitals attended and will forward them to you when they are to hand/or please request the GP and Hospital records direct and advise that any invoice for the provision of these records should be forwarded to us. In order to comply with Court Rules we would be grateful if you would insert above your signature a statement that the contents are true to the best of your knowledge and belief. In order to avoid further correspondence we can confirm that on the evidence we have there is no reason to suspect we may be pursuing a claim against the hospital or its staff. We look forward to receiving your report within _______ weeks. If you will not be able to prepare your report within this period please telephone us upon receipt of these instructions. When acknowledging these instructions it would assist if you could give an estimate as to the likely time scale for the provision of your report and also an indication as to your fee. Yours faithfully CIVIL PROCEDURE RULES Pre-Action Protocol for Personal Injury Claims page 15 PROTOCOLS APRIL 2007 D The rehabilitation code CIVIL PROCEDURE RULES page 16 Pre-Action Protocol for Personal Injury Claims Protocols APRIL 2007 CIVIL PROCEDURE RULES Pre-Action Protocol for Personal Injury Claims page 17 PROTOCOLS APRIL 2007