When your lawyers have enough information they will write a letter of claim to the person or organisation who is responsible for the accident. They are known as the Defendant. You are known as the Claimant.
All personal injury claims are subject to what is known as the “pre-action protocol”. The aim of the protocol is to encourage exchange of information between the Claimant and the Defendant, and proper investigation of your claim by both sides. The intention is to put both parties into a position to settle cases fairly and quickly, without litigation. The protocols should enable both parties to explore settlement before the need to issue court proceedings. Failure to follow the protocols can result in the Court making costs orders against a party, or even dismissing a claim.
Under the Personal Injury Protocol the Defendant must acknowledge receipt of the letter of claim within 21 days and then has an additional three months to make a substantive response. If there is a delay in the police being able to release the collision report the insurer can ask for additional time to respond. If the Defendant admits liability then (providing your claim is worth less than £25,000) that admission will normally be binding on the insurer. If liability is admitted, an attempt ought to be made to negotiate settlement of your claim without issuing court proceedings.
Your lawyers will instruct a doctor to see you and prepare a medical report if you have suffered personal injuries. Usually it is necessary to wait until it is clear that liability can be established against a Defendant. If you are still recovering then normally it is sensible to wait until you have finished any treatment (including, for example, physiotherapy).
Once your lawyers have enough information to write the detailed letter of claim and it is sent, the timetable starts. The Defendant must acknowledge receipt of the letter of claim within 21 days. If for any reason the Defendant does not forward the letter of claim to their insurer promptly, the insurer can ask us for additional time to respond. From the time that the insurer acknowledges receipt of the detailed letter of claim they have 3 months to make the decision on whether they will pay your claim. If the Defendant admits liability then (providing your claim is worth less than £15,000) that admission will normally be binding on the insurer. If liability is admitted, an attempt ought to be made to negotiate settlement of your claim.
If after investigating the claim the Defendant denies liability they must give reasons. They must also disclose all relevant documents relating to your claim. These documents are things like accident books, or records of previous complaints or anything else that might assist in showing how the accident happened and who was the cause of it.
If the Defendant admits liability but claims that you were partly to blame, they must also give their reasons for this and also disclose the relevant documents. The Claimant’s lawyers must then respond to those allegations before issuing proceedings.
Sometimes it is appropriate to have a single jointly expert instructed by both parties. If a single joint expert has not been instructed and the claim is of reasonable significance, it is possible the Defendants might be able to obtain their own medical report. This might be appropriate if you are submitting a very large claim for loss of earnings.
Once a medical report has been disclosed both sides can ask the expert to provide answers to written questions on the report.
Where the Defendant admits liability, your lawyers must disclose the medical report and give the Defendants an opportunity to make a settlement offer before issuing Court Proceedings.
Your lawyers should advise you whether they think it is appropriate to put forward a settlement proposal on your behalf either before or after the Defendant has made an offer. Because an offer would be binding on you, your lawyers need to be sure that they know all the facts about your case before making an offer. The advantage of you putting forward an offer is that if the Defendant rejects it but ultimately settles for more or you are awarded more at trial, then they may have to pay additional compensation to you. Your lawyers should advise you about this at the appropriate stage. The Defendant is also penalised as to legal costs if they reject the offer and you get more compensation later.
If your claim is worth £25,000 or less then it will proceed in the “Fast Track” through the MOJ Portal – an automated system used to streamline lower value cases and to avoid court proceedings. Cases may ‘fall out’ of the Portal where liability is disputed by the defendants. In Fast Track cases the Defendants are usually only obliged to pay the Claimant`s fixed legal costs. If the case is worth more than £25,000 then it will fall within the “Multi-Track”. In the Multi Track the Defendants will pay a successful Claimant`s reasonably incurred legal costs.
Many cases settle without the need for court proceedings but in larger, more complex cases or where there is a liability dispute it is often necessary to issue court proceedings. Once proceedings are issued the Court will set a timetable for finalising the case including directing disclosure of documents, witness statements and experts reports. The parties are obliged to make reasonable efforts to negotiate settlement without proceeding to court.
By Paul Kitson, Partner at Slater & Gordon Lawyers
Paul is a claimant personal injury specialist, whose particular expertise lies in Road Traffic Incident (RTI) litigation as well as sports injury litigation. He has a niche practice in cycling injury claims and is the client partner for the CTC, the national cycling charity.
2008, Updated 2015