Pre-action Protocol

Outline

This essay will describe and explain the main objectives of the Civil Procedure Rules (CPR) and the pre-action protocol itself, the purpose of the protocol, the letter of claim and its contents, standard disclosure procedure and documents, the importance of adhering to the pre-action protocol and the possible consequences for the claimant and other parties involved.

Objectives

1. These rules are a procedural code with the overriding objective of enabling the court to deal with cases justly.

2. Dealing with a case justly includes as far as is practicable-

a) ensuring that the parties are on an equal footing

b) saving expense

c) dealing with the case in ways which are proportionate-

i) to the amount of money involved;

ii) to the importance of the case;

iii) to the complexity of the issues; and

iv) to the financial position of each party;

d) ensuring that it is dealt with expeditiously and fairly; and

e) allotting it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Compliance With Pre-Action Protocol Procedure

To fulfil the above objectives it is important to comply with the procedures. It is in both the claimant and defendant’s interest so that the case can be dealt with efficiently and quickly and it keeps legal costs to a minimum and saves court costs and time. In deciding whether the procedure has been complied with, the court will decide whether the parties have complied with the relevant principles and requirements and is not likely to be concerned with minor or technical shortcomings.

It will consider how proportional were the steps taken compared to the importance of the matter. The urgency of the case will also be taken into account. The court may decide that compliance has not occurred if the party has not provided sufficient information to enable the other party to understand the issues involved ibn the case. If a party has mot acted within the time limit set out in a relevant pre- action protocol, or within a reasonable period where no time limit has been agreed, it could be argued that compliance has not occurred. In addition to this, a party will be deemed to not have complied if, without good reason, he has not disclosed documents requested to be disclosed by the other party.

There are sanctions that can be applied at the court’s discretion, if the procedure is not followed. The court will take into account the overall effect of non- compliance on the other party when deciding whether sanctions should be applied and if so, the extent of the sanctions.

Potential sanctions are:

1. Suspending the proceedings until the procedures that should have been carried out are carried out,

2. Imposing an order that the party at fault pays the costs, or part of the costs of the other party.

3. Imposing an order that the party at fault pays costs on an indemnity basis.

4. If the claimant, in whose favour an order for the payment is made, is at fault, an order to deprive him of interest on the whole or part of the amount may be made and that interest may be awarded at a lower rate than would otherwise be awarded.

5. If the defendant is at fault, and an order for payment is made in favour of the claimant, an order may be made that he pays interest on the whole or part of the amount at a higher rate not exceeding ten percent above base rate than would otherwise have been awarded.

Pre-Action Correspondence

After receiving instructions to act from a client, a solicitor will usually enter into correspondence with the other side in any action. There is usually a period of negotiation before proceedings are commenced. Sometimes receipt of a solicitor’s letter by the defendant will indicate that the client is serious, and will encourage the other side to offer to settle without the need for formal proceedings. Full details of the claim should be sent giving the other side a reasonable opportunity to respond. If the negotiations are successful, both sides will save a considerable amount of legal costs and effort involved in litigation. Both sides of the dispute are expected to discuss the details with each other and to cooperate in making pre-action investigations regarding the evidence. This will enable both sides to be in a position where offers to settle the claim can be made at an early stage without needing to go to court.

Letter Of Claim

Pre-action protocol dictates that a detailed letter known as a Letter of Claim be sent to the defendant outlining the reasons for bringing the case. The first step is to send the Letter of Claim to the employer. It is important that the solicitor of the defendant or employer sees a copy of the Letter of Claim as soon as possible. The Letter of Claim must confirm the claimant’s allegations of negligence (or a broad outline) and confirm any witnesses or additional evidence. Any documents that may be legally required to be produced by the employer by way of disclosure e.g. accident book record etc. should be stated. Liability must be outlined clearly to ensure a swift resolution of the claim. The letter must also detail what injury has been suffered and whether there are any ongoing losses arising from the injury.

The Letter of Claim is important because it not only acts as a detailed outline of the case, but it also serves to initiate the claim. The full contents of a Letter of Claim have been included in a previous assignment and these include many regulations and acts. It is not essential for the agent to have learnt these, but it is very important that the agent is familiar with them and understands them to be sufficiently comfortable in their use.

Standard Disclosure Procedure

The procedure for standard disclosure of documents is as follows:

1. Each party must make and serve on every other party a list of documents in the relevant practice form.

2. The list must identify the documents in a convenient order and manner and as concisely as possible.

3. The list must indicate-

a) those documents in respect of which the party claims a right or duty to withhold inspection; and

b) i) those documents which are no longer in the party’s control; and

ii) what has happened to those documents.

The list of documents must include a statement relating to any documents inspection of which a person claims he has a right of duty to withhold.

4. The list must include a disclosure statement.

5. A disclosure statement is a statement made by the party disclosing the documents:

a) setting out the extent of the search that has been made to locate documents which he is required to disclose

b) certifying that he understands the duty to disclose documents; and

c) certifying that to the best of his knowledge he has carried out that duty.

6. Where the part making the disclosure statement is a company, firm, association or other organisation, the statement must also-

a) identify the person making the statement; and

b) explain why he is considered an appropriate person to make the statement.

7. The parties may agree in writing-

a) to disclose documents without making a list; and

b) to disclose documents without the disclosing party making a disclosure statement.

8. A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.

Pre-Action Personal Injury Protocol Standard Disclosure Lists

Road Traffic Collision Cases:

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.

Highway Tripping Claims:

Documents from Highway Authority for a period of 12 months prior to the accident-

i) Records of inspection or 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.

v) Safety representative’s accident report.

vi) RIDDOR (Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations) report to the Health and Safety Executive.

viii) Earnings information where defendant is the 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.

Workplace Claims-Specific Regulations Disclosure

Workplace (Health and Safety 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).

The following regulations should also be included:

Personal Protective Equipment at Work Regulations 1992

Manual Handling Operations Regulations 1992

Health and Safety (Display Screen Equipment) Regulations 1992

Control of Substances Hazardous to Health Regulations 1999

Pressure Systems and Transportable Gas Containers Regulations 1989

Lifting Operations and Lifting Equipment Regulations 1998

The Noise at Work Regulations 1989

Gas Container Regulations 1989

Relevance And Examples In A Road Traffic Collision.

In the event of a road traffic collision where liability is disputed, a post accident inspection vehicle report will provide evidence regarding the type and position of impact. This may assist in establishing liability. The MOT Certificate for vehicles over three years of age and documents relating to service records of the vehicle will establish the attitude to maintaining the vehicle of the owner and its current state. Of course these documents are not foolproof because a defect could possibly arise soon after a service or MOT test. The likelihood of this is dependent on the quality of servicing and the MOT testing station carrying out the work and of course the way the driver treats the vehicle. Should a dispute arise regarding this, an independent assessment may be carried out to establish standards. It is also the responsibility of the Highway Authority to ensure that the design of the highway is not conducive to an accident. For this reason the design all new crossroads includes a means of control.

Where a commercial vehicle is involved, the tachograph records are invaluable as evidence that the driver did not drive for excessive hours illegally and that tiredness (as defined by the regulations) may not have caused the collision in accordance with the regulations regarding number of hours driven without a break. Of course this does not mean that the driver was not excessively tired, just that he complied with the regulations.

Relevance And Examples In An Accident At Work

First hand reports from those on the site of an accident at work are very important.

These not only give an account of what happened, but also show that the company was complying with the regulations and operating legally. The first aider report will indicate what treatment was carried out on site and earnings information will give an indication of financial loss as a result of the accident. Entries in the accident book give an account of any injuries sustained as well as showing the presence of an accident book and that procedures exist in the event of an accident. Minutes of meetings on a Health and Safety Committee again show the existence of such a committee and that the company is complying with the regulations. Reports of risk assessments, both pre and post accident will demonstrate any preventive measures taken in order to avoid accidents, and action taken after an accident in order to prevent further problems and correct any inadequacies.

There are certain workplace claims where specific regulations apply with regard to the disclosure of documents. These involve documents regarding the supply, maintenance and use of personal protective equipment, plant and machinery. Risk assessment records specific to certain industries, for example to COSHH regulations show that these regulations have been considered and followed. The COSHH report will give an indication of potential local and general contamination and what measures were taken pre and post accident to prevent and control the effects of the accident.

Relevance And Examples In A Highway Tripping Accident

With regard to claims of this nature it is essential for the Highway Authority to retain all records for disclosure. If an authority is informed of a defect, it has 31 days to correct the defect. Records of complaints should also be kept as well as records as to how these complaints were handled. Repeated complaints regarding the same unrectified defect would imply liability on the authority’s part. It also has a duty of maintenance and written records inspection and maintenance must be retained.

Dated documents are important evidence in case of any claim or dispute. These documents may prove or disprove liability and should include any contracts or information regarding independent contractors working on the authority’s behalf.

It can be seen from the above information that there are many acts and regulations which must be followed by authorities and industries. If failure to comply and hence liability is proven, the claimant will be entitled to compensation.

Response To A Letter Of Claim

Pre -action protocol procedure is based around the time limit of twenty one days. If the defendant does not respond to the Letter of Claim within that time, the claimant must instigate legal proceedings, but must have a medical report and schedule of special losses prepared on his own behalf.

If the defendant responds to the Letter of Claim within the twenty one day limit, the claimant must allow him three months to have the claim investigated on his behalf during which time the claimant will have his own investigations undertaken.

If the defendant admits liability after the three months time limit, an attempt to settle the claim through a Part 36 offer (without prejudice) should be made. If the case is settled by this proposal, then the case is concluded. However, if the defendant does not admit liability after the three months time limit, a solicitor must be instructed to institute proceedings by filing and serving a claim form and the Particulars of Claim.

The defendant should enclose with the letter of reply to the claimant or his solicitor, 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. The documents required have been outlined elsewhere in this essay. At this stage our interest as agents is concluded.

False Disclosure Statements

Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth.

Proceedings under this rule may be brought only-

a) by the Attorney General; or

b) with the permission of the court.

In other words, if the claimant is deliberately misleading he may be prosecuted and this should be pointed out to him before pre-action protocol is initiated.