If you suffered an injury or illness due to the negligence of another party, you might want to ask for compensation. There are a series of steps that almost every case must follow before issuing court proceedings, known as the pre-action protocol for personal injury claims.
This protocol aims to help the parties involved exchange information and settle the claim without a trial to help reduce the costs, time and stress involved in a legal dispute. Failure to follow the pre-action protocol may result in significant financial sanctions.
If you feel you may have a valid claim for compensation, call 0800 678 1410 or request a call back to receive a free consultation with a legal adviser. If your case has merit, they will offer you support and advice at every step of the pre-action protocol for personal injury claims.
What is a pre-action protocol?
A pre-action protocol is a set of steps the court expects both parties involved in a legal dispute to undertake before issuing formal court proceedings. Pre-action protocols are approved by the Master of the Rolls and annexed to the Civil Procedures rules.
The objectives of pre-action conducts and protocols include:
- Exchange information and understand the other side’s position
- Decide on how to proceed with the claim
- Try to settle the claim without formal court proceedings
- Use a form of Alternative Dispute Resolution (ADR) to assist with settlement
- Reduce the costs involved in litigation
- When litigation is inevitable, support the efficient management of proceedings
The pre-action protocol may not be used by one of the parties to gain an advantage over the other side. The parties should follow the steps of the protocol to narrow and resolve the legal dispute before issuing proceedings, including:
- The claimant must write a letter to the defendant, stating the basis of their claim, an outline of the facts, and what they want from the defendant, including how they calculated the financial compensation they expect to receive.
- The defendant must acknowledge the claim within 14 days and carry out their investigations within three months before sending a letter of response. The response should state whether they accept the claim and, if they dispute it, the reasons for their decision.
- The parties should disclose the essential documents relevant to the case.
There are different pre-action protocols for different types of claims, such as:
- Personal injury claims
- Clinical disputes
- Construction and engineering claims
- Professional negligence
- Housing disrepair
- Possession claims by social landlords
- Low-value road traffic accident (RTA) claims
- Low-value personal injury public liability claims
- Low-value employer’s liability claims
- Personal injury claims below the small claims limit in RTAs
If a party fails to comply with the pre-action protocol, the court may impose a series of sanctions, such as ordering the disregarding side to pay the other’s litigation costs.
What is the pre-action protocol for personal injury claims?
The pre-action protocol for personal injury claims sets out the steps that the claimant and defendant in a personal injury claim should follow before issuing formal court proceedings. It was introduced in April 1999 when there was an overhaul of the entire civil justice system.
The pre-action protocol became part of an entirely new set of civil court rules enforced by Lord Woolf. No pre-action rules ever existed before 1999, and personal injury lawyers were rushing to start court proceedings as soon as possible as a way to get insurers to take the claim seriously.
Although this system was profitable for solicitors, it was very stressful and time-consuming for victims of personal injuries. The claims were often being settled, quite literally, at the door of the court.
The pre-action protocol encourages the parties to exchange information at an early stage of the claims process and consider settling the claim out of court. The central theme of the protocol is that a personal injury claim should only go to trial after all other negotiation options have failed.
Strictly speaking, the protocol only applies to cases that will likely be allocated to the fast track. Fast track claims are cases worth less than £25,000, where a trial will last less than one day. In practice, however, the pre-action protocol is followed in all personal injury claims.
In cases involving severe injuries, the protocol is supplemented by the Serious Injury Guide published to help the parties involved in a claim work together and settle out of court if possible.
When does the protocol for personal injury claims apply?
The pre-action protocol for personal injury claims is primarily designed for low to moderate-value claims. However, the basic steps and general guidelines of the protocol apply to most personal injury claims, including:
- Accidents at work
- Accidents in public
- Product liability claims
- Child injury claims
- Holiday accidents
- Slips, trips and falls
- Road traffic accidents, except for low-value claims
The pre-action protocol aims to save litigation costs and avoid the need to go to court and is essential whenever there is a legal dispute. While the spirit of the pre-action protocol for personal injury claims should be followed even if a case could potentially be allocated to multi-track, there are different pre-action protocols for:
- Low-value personal injury claims in road traffic accidents
- Clinical negligence claims
- Claims for disease and illness
- Low-value claims in employer’s liability accidents and public liability accidents
- Cases below the small claims limit in road traffic accidents
- The new whiplash tariff
The new whiplash reform that came into force in May 2021 intends to encourage victims of whiplash injuries in car accidents to pursue their claim online, without the need to go to court or for legal representation.
According to the new regulations, the compensation awards for whiplash are fixed between £240 and £4,345. The amount you could receive depends on the prognosis stated in an official medical report obtained from a professional designated by the Ministry of Justice.
What is the purpose of the pre-action protocol?
The overall aims of the pre-action protocol for personal injury claims are:
- Encourage communication between the parties
- Ensure the exchange of early and complete information about the claim
- Promote the provision of treatment and rehabilitation at the earliest possible opportunity
- Allow both parties to understand each other’s position and investigate the allegations made
- Enable the parties to avoid issuing court proceedings by agreeing to settle without a trial
- Support the just and efficient management of proceedings where litigation cannot be avoided
- Ensure that damages are paid within a reasonable time
The pre-action protocol was mainly introduced to ensure that both parties work to a set timetable and have all the relevant information about the claim. The court expects that all parties take the protocol steps before issuing formal court proceedings.
To start a personal injury claim, enter your details into our online claim form or call 0800 678 1410 to speak to a legal adviser. If you have a valid claim, your solicitor will contact the other side and thoroughly follow all the protocol steps to ensure you get the best settlement for your injury.
What are the protocol steps that need to be followed?
The Ministry of Justice has set out a detailed protocol for personal injury claims. The main steps that the two parties must follow in a personal injury claim are listed below:
The letter of notification
The claimant or their solicitor should inform the defendant as soon as they know they will likely bring a claim. This initial letter is sent at an early stage, before having all the details required to send a letter of claim.
The letter of notification should provide the defendant with any relevant information available to help assign liability for an interim payment or early rehabilitation needs. The defendant should acknowledge the letter within 14 days after receiving it.
At this stage, the parties are expected to address whether the victim has any immediate medical or rehabilitation needs. The Rehabilitation Code can help the parties identify those needs and address the cost of providing for them.
A medical professional such as a physiotherapist or occupational therapist is usually appointed to assess the victim’s needs and prepare an Initial Needs Assessment report. The medical needs should then be periodically considered throughout the entire pre-action protocol period.
Letter of claim
After having the relevant details of the case, the claimant should send two copies of the letter of claim, one to the defendant and one to their insurer. This letter should contain the following information:
- Their name and address
- A clear summary of how the accident occurred and why the defendant is being held liable
- A description of the injuries suffered by the victim
- A description of the financial losses and expenses incurred
- Details of the claimant’s medical needs
- Their clock or works number
- The name and address of the claimant’s employer
The letter of claim should give the defendant enough details to investigate the circumstances and their presumed liability. The claimant’s date of birth and national insurance number should only be provided once the defendant has responded to the letter of claim.
The defendant must reply to the letter of claim within 21 days, or the claimant may issue court proceedings. After responding, the defendant will have another three months to investigate the allegations against them. If this is not practicable, the court may sometimes extend the deadline.
Afterwards, the defendant must send a letter of response to the claimant, stating whether or not they admit liability. This involves agreeing that the accident was due to the defendant’s breach of duty, the victim suffered damages, and they are within the time limits to bring a claim.
If liability is denied, this should be supported by valid reasons. The defendant must provide their account of the accident and any documents in their possession to support their position.
At this stage, both parties must disclose any documents that may help clarify or resolve the issues in dispute. Depending on the nature of a claim, these may include:
- All relevant risk assessments
- Maintenance records of machinery and equipment at work
- Photographs of the accident scene, CCTV or dash cam footage
- Police and accident book entries
- Documents relating to the assessment of PPE (Personal Protective Equipment)
- Training records
- Records of complaints about the state of a road, pavement or highway
- Witness statements
If one of the parties fails to provide relevant documents, the other side may apply to the court to obtain them.
In most fast-track claims, the victim will only need to provide a medical record obtained through a medical agency rather than directly from a specific hospital or doctor. In some cases, other expert evidence may be needed, such as an engineer’s or accident reconstruction expert’s report.
The claimant must provide details of the expert to the other side before obtaining a report so that they can decide whether the expert is suitable to provide evidence in the case. The insurers can then choose to accept an expert’s report or raise issues with it.
Alternative dispute resolution
The pre-action protocol for personal injury claims states that litigation should be the last resort. Before that, both parties should consider all other means of resolving the dispute, such as negotiating a settlement or hiring a third party for mediation or arbitration.
If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been previously exhausted. If one of the parties refuses to participate in an alternative dispute resolution, the court can penalise them.
If the parties are unable to settle the matter after all alternative dispute resolution strategies have been exhausted, they should each undertake a review of their position and reconsider the strengths and weaknesses of their case.
As a final recommendation, the pre-action protocol suggests that the claimant should invite the defendant or their insurer to nominate solicitors to act on their behalf, 7 to 14 days before issuing court proceedings.
What happens if a party does not follow the pre-action protocol?
If a party fails to adhere to the pre-action protocol for personal injury claims, the courts can impose any of the following sanctions:
- Suspend proceedings until the parties first comply with the protocol
- Order that the disregarding party pays the other party’s costs or part of them
- Demand that the infringing party pays the other’s costs on a full indemnity basis
- Deprive a successful claimant of some or all of the compensation interest they would be entitled to
- Award interest against an unsuccessful defendant at a higher rate than usual
If a party has failed to comply with a relevant pre-action protocol without good reason, the sanctions imposed can be very costly. If non-compliance is brought to the attention of the court early in the claiming process, the court may instead order a stay of proceedings until the appropriate steps of the protocol have been followed.