Personal injury procedures

Initially

Your lawyers will start to gather evidence to pursue the claim. This means writing to witnesses and getting information from you and your employer and other people about your financial losses. If proving any part of your case (either as to liability or the losses you have incurred) depends on documentary evidence it is important that you keep such letters, reports or invoices safe. You actually have a legal obligation to save them if your case goes to Court.

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).

Then

Most claims are made against Defendants who are insured. Sometimes there may be arguments as to whether or not the Defendant is insured. In a road accident case where the Defendant is not insured, the Motor Insurers Bureau will deal with the claim. Where insurers do not deal with your claim sensibly, it may be necessary to issue Court proceedings.

Protocol

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 Court Proceedings to run to the Court timetable, and efficiently, if litigation is necessary. Failure to follow the protocols can result in the Court making costs orders against a party, or even dismissing a claim.

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.

Financial Losses

Your lawyers have to send to the Defendant, as soon as possible, a list of all your financial losses with supporting documents. This is called the ‘Schedule of Special Damages’.

Medical Opinion

When the position on liability becomes clear it is normally appropriate to instruct an independent medical expert. Before this can be done the Defendant has to be given the opportunity to object to the expert it is proposed should prepare the report and agree a different expert if at all possible. Normally it is a straightforward process to agree an appropriate doctor to carry out the examination. Save for the most straightforward of cases, it is normally appropriate for the medical expert to have access to your medical notes and records.

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.

Disclosure of Documents

It is important that you retain any documents to prove your financial losses, eg. wage slips, an invoice for the repair of your bicycle, fee notes for physiotherapy charges. These should be retained safely until the conclusion of your case. The Defendants are obliged to disclose any documents which are relevant to your claim. For example, a highway authority is obliged to disclose their repair and maintenance documents if they are denying liability in respect of an accident caused by a road defect.

Offers in Settlement

The Defendant can at any time make an offer in settlement. The offer can relate to quantum (ie the value of your claim) or to liability or both. A Claimant also make an offer to the Defendant. If these offers are made formally under Part 36 of the Civil Procedure Rules (known as Part 36 offers) they might result in costs penalties. If reject a Defendant`s Part 36 offer and you then fail to receive an award of damages in excess of that amount you are likely to be responsible for the Defendant`s legal costs from the date of their offer. However if you recover an award in excess of the Defendant`s Part 36 offer then there are no costs penalties. If you, as a Claimant, make a Part 36, and if it is rejected by the Defendant and you recover an award in excess of this amount at trial then the judge can award interest of up to 10% above the base rate on your damages, your legal costs on an indemnity basis and interest on costs from the last day after which the Defendant was expressed to be able to accept the offer.

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.

Court Proceedings

If it is not possible to negotiate with the Defendant then it will be necessary to issue proceedings provided you have a strong enough case. At that stage it is necessary to provide full explanation to the Defendant of the basis of your
claim including full details of your financial losses and personal injuries. This is set out in a Court document known as a “Particulars of Claim”.

Eventually

Usually most cases settle without the need for a Trial (in practice less than 1% of personal injury cases proceed to trial). There can often be disputes are often over medical issues, particularly where doctors think the injury you have may be an aggravation of a pre-existing problem. Cases are always concluded on a full and final settlement basis (only in rare and exceptional cases is it possible to conclude a case on a “provisional damages basis”.

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

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