Pre action Protocol for Personal Injury claims: the key changes
A number of civil reforms relevant to the handling of personal injury claims came into force on 6 April 2015 including amendments to the CPR Part 36 rules, the introduction of Medco for the instruction of experts in whiplash claims, and revised protocols in personal injury and clinical negligence.
This update highlights the key changes in the new Pre action Protocol for Personal Injury Claims (“PI Protocol”)
At a glance
Although many of the sections remain unchanged from the original version, there has been a general tidying up to make it easier to follow and a number of significant amendments which include:
greater clarity on when cases fall under the Protocol having exited either of the low value portals;
strengthened sections dealing with non-compliance, the status of letters of claim/response and the quantum information which needs to be provided by the claimant;
a requirement that defendants should provide their own version of events and supporting documentation where liability is denied.
Guide to key channels
The headings and numbering below refer to the new version now available on the Justice website here.
Scope - As before, the PI Protocol is primarily designed for personal injury claims which are likely to be allocated to the fast track and not to those proceeding under the other protocols.
Impact of low value protocols - although the main provisions of the PI Protocol remain unchanged from the original version, new sections have been added to reflect the impact of the low value protocols for RTA and EL/PL claims. Since the introduction of the low value protocols in 2013 there has been a substantial reduction in the number of claims run under the PI protocol. The revised PI Protocol outlines the circumstances where it will still be used for RTA, EL and PL claims. This is specifically where a claim has fallen out of the low value protocol because liability is denied, contributory negligence is alleged or the Claim Notification Form process has not been followed correctly. Claims which exit either of the low value pre-action protocols prior to Stage 2 will proceed under the PI Protocol from the point specified in those protocols, and as set out in paragraph 1.3.
This means that if the claim exits the portal due to inadequate mandatory information on the CNF then a letter of claim is needed to start the PI Protocol process; while if it exits as no admission is made, or contributory negligence is alleged, or no response is made, then the CNF can stand as the letter of claim and the claim will drop into the PI Protocol with, we assume, the balance of the investigation period still to run.
Sanctions - Whilst the PI Protocol has always warned of potential “adverse consequences”, stronger language is now used in stating that where either party fails to comply, the court may impose “sanctions”. As before, when deciding whether to do so, the court will look at whether the parties have complied in substance with the relevant principles and requirements, will also consider the effect any non-compliance has had on another party and is not likely to be concerned with minor or technical shortcomings.
Litigants in Person - a new section now states that if a party to the claim does not have a legal representative they should still, so far as is reasonably possible, fully comply with this Protocol.
3. The Protocol
A helpful new 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 - Whilst the old Protocol encouraged early notification that a claim was likely to be made, there is now more detailed provision for a “Letter of Notification” at clauses 3.1 – 3.3 signalling to the defendant a need to investigate but also giving any relevant information available to assist with determining issues of liability/suitability of the claim for an interim payment and/or early rehabilitation.
There is now a reminder that the parts of the Protocol concerned with rehabilitation are likely to be of application in all claims. Also new is the statement that whoever conducts the immediate needs assessment will not be a compellable witness at court and a reminder that consideration of rehabilitation options, by all parties, should be an ongoing process throughout the entire Protocol period, not just at the outset.
5. Letter of Claim
With the provision that the claimant should send to the proposed defendant two copies of the Letter of Claim, one copy for the defendant and the second for passing on to insurers as soon as possible, there is now the additional requirement that this should be done within 7 days of the day upon which the defendant received it.
As before, the Letter of Claim should include the information in the template at Annexe B1. but there are some additional reminders added to the previous template e.g. a clear summary of the facts; the description of client’s injuries should include a non-exhaustive list of the main functional effects on daily living and prognosis, so that the defendant can begin to assess value/rehabilitation needs; and the heads of damage to be claimed and the amount of that loss, unless this is impracticable.
The wording has been refined to make it clear that 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.
6. The response
New at Annexe B2 is a template for the suggested contents of the Letter of Response: with the level of detail to be varied to suit the particular circumstances. Included in this is the defendant’s own version of events and supporting documentation where liability is denied.
As before, the defendant must reply within 21 days of the date of posting of the letter identifying the insurer. There is then more detail than before, stating that 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.
As before, where there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings. New is the statement that compliance with this paragraph will be taken into account on the question of any assessment of the defendant’s costs.
Time limits are made slightly clearer at para 6.3 with the defendant (insurer) having 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” and the addition of “No later than the end of that period, the defendant (insurer) should reply, 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.”
Admissions - New at para 6.6 is the statement that an admission made by any party under this Protocol may well be binding on that party in the litigation. Further information about admissions can be found in CPR 14.1A. (The previous version contained a section stating that where the defendant admitted primary liability but alleged contributory negligence by the claimant, the defendant should give reasons supporting those allegations and disclose those documents from [Annex C] relevant to the issues in dispute and that the claimant should respond to the allegations of contributory negligence before proceedings are issued - this paragraph no longer appears in the new PI Protocol.)
Delay - New at para 6.7 is the statement that following receipt of the Letter of Response, if the claimant is aware there might be a delay of six months or more before the claimant decides if, when and how to proceed, he should keep the defendant informed.
The aim of early disclosure of documents remain the same. As before, the claimant’s solicitor can help by identifying in the Letter of Claim or in a subsequent letter the particular categories of documents which they consider to be relevant but new is the requirement for them to state why, with a brief explanation of their relevance if necessary.
Pre action disclosure - In a new section at para 7.1.3, it is stated that this will generally be limited to the documents required to be enclosed with the Letter of Claim and the Response. In cases where liability is admitted in full, disclosure will be limited to the documents relevant to quantum. The parties can agree that further disclosure may be given. If they agree but disagree about some aspect of that process, they may be able to apply to the court for pre-action disclosure under Part 31 CPR. Parties should assist each other and avoid the necessity for such an application.
Duty to preserve - New too is the requirement at para 7.1.4 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.
Standard Disclosurelists - there have been various additions to these lists at Annex C. Any hope for reduced length of these standard lists has not been met.
Experts - most of the provisions remain unchanged. Where a medical expert is to be instructed, the claimant’s solicitor should organise access to relevant medical records. The specimen letter of instruction at Annexe D only differs slightly from the previous version with the addition of reminders to include a summary of the main facts of the accident circumstances; a description of the main injuries and functional impact on day to day living; enclosure of hospital records, GP records and statement of events with a statement of use of best endeavours to obtain any missing records; if client requires further treatment, a request to advise of the cost on a private patient basis; and the full wording of the statement of truth.
New is the provision at para 7.9 that written questions to an agreed expert must be put within 28 days of service of the expert’s report and only for the purpose of clarification. The previous provision that the expert should send answers to the questions “separately and directly” to each party has been replaced by “simultaneously”.
8. Negotiations following an admission
Medical reports & schedule - As before, where a defendant admits liability which has caused some damage, before proceedings are issued, the claimant should send to that defendant any medical reports obtained under the Protocol on which the claimant relies; and a schedule of any past and future expenses and losses claimed, even if the schedule is necessarily provisional. New is the provision at 8.1.1 that the schedule should contain as much detail as reasonably practicable and should identify ongoing losses. If the schedule is likely to be updated before the case is concluded, it should say so.
Part 36 - As before, CPR Part 36 allows claimants and defendants to make offers to settle pre-proceedings and if such an offer is made, the party making the offer must always try to supply sufficient evidence and/or information to enable the offer to be properly considered. New is the statement that the level of detail will depend on the value of the claim and that medical reports may not be necessary where there is no significant continuing injury and a detailed schedule may not be necessary in a low value case.
9. Alternative Dispute Resolution
It is still recognised that no party can or should be forced to mediate or enter into any form of ADR. However, it is now expressly stated that unreasonable refusal to consider ADR will be taken into account by the court when deciding who bears the costs of the proceedings.
10. Quantification of Loss - Special damages
A new section adds that the claimant’s schedule of past and future losses should contain as much detail as reasonably practicable and should identify ongoing losses. 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.
The idea of the stocktake is not new in the PI Protocol but has been made clearer. 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 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.
Some may see this stocktake as an extra costly layer but it is designed, no doubt, to make parties think seriously about what other steps can be taken and what issues can be narrowed before the expensive step of issuing proceedings.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.