The new Civil Procedure Rules - The personal injury pre-action protocol (August 1999)

Circular No. 10/99 August 1999

TO THE MEMBERS

Dear Sirs,

THE NEW ENGLISH CIVIL PROCEDURE RULES - THE PERSONAL INJURYPRE-ACTION PROTOCOL

Members are referred to the related Circular No. 9/99 in which they were informed of the new English Civil Procedure Rules ("CPR") that came into effect on 26 April 1999. One of the changes brought about by the new CPR is the introduction of pre-action protocols, the purpose of which is explained in the Appendix to Circular No. 9/99.

The personal injury pre-action protocol, which is intended to deal with claims of less than GBP 15,000, will be of relevance to Members and the Association. A description of what is required of both the claimant and the defendant under this Protocol is described below:

THE CLAIMANT

Before proceedings are commenced, the claimant must send the proposed defendant a letter of claim containing a clear summary of the facts on which the claim is based, the nature of any damage and details of any financial loss occurred. If the Defendant's insurer is known the claimant should send a copy of the letter directly to it (if the defendant receives the letter, he should pass it onto his insurer). Sufficient information must be given in the letter to enable the defendant and his insurer/solicitor to commence investigations and to put a broad value on the risk.

THE DEFENDANT

The defendant MUST respond within 21 calendar days of the date of posting of the letter of claim giving the claimant the name of his insurer, if any. If he does not do so respond, the claimant is entitled to commence proceedings after the expiry of 21 days of sending the letter of claim without further notice to the defendant.

If the defendant acts prudently and acknowledges the letter within 21 days, the defendant/defendant's insurers then have three months from the date of acknowledgement of the claim to investigate the claim. Within that three months, the defendant must provide a substantive reply stating whether liability is:

1. admitted: the presumption is that the defendant will be bound by this admission for all claims with a total value of up to GBP 15,000.

2. denied, giving reasons and enclosing documents material to the issues between the parties and which would likely to be ordered to be disclosed by the court.

3. admitted but alleging contributory negligence: where the defendant admits primary liability but alleges contributory negligence by the claimant, the defendant should still give reasons and enclose supporting documents.The Claimant must then send the defendant a schedule of damages with supporting documents as soon as possible.

N.B.: It is vitally important to acknowledge the letter of claim within the 21 days. If it is not acknowledged, then the Member will be deprived of the additional period of three months in which to investigate the matter. Once proceedings are commenced, the court will take control of the matter and expect the parties to comply with a strict timetable for the service of the statement of case and thereafter. The poorly prepared defendant will then be placed in severe difficulty. He will be unable to serve a bare denial of the claim while he investigates the claim and obtains evidence (see the attached Circular No. 9/99 as to the court's power to strike out bare or "skeleton" statements of case). Members are therefore advised to contact the Association as soon as they receive a letter of claim whereupon the Association can take the necessary steps to protect the position.

EXPERTS

The parties may instruct an expert to assist them in the discussions taking place under the pre-action protocol but an attempt should first be made to try and agree a single expert. Accordingly, before any party instructs an expert he should give the other party a list of names of experts. Objections may be raised over the choice of expert and a mutually acceptable one should be instructed. If this cannot be agreed, the parties may then instruct experts of their own choice. If proceedings are issued, it will be for the court to decide whether any party had acted unreasonably in failing to agree an expert and may make costs sanctions accordingly.

Once an expert has been agreed and upon completion of the expert's report, both parties may send written questions to the expert. The expert will reply separately and directly to both parties. The first instructing party will usually pay the cost of a report from an agreed expert. The costs of the expert replying to questions will usually be borne by the party asking the questions.

N.B.: If a party wishes to appoint his own expert rather than agree to an expert nominated by the other party, he must lodge objections to the nominations within 14 days of receiving the nominations. If he fails to do so, he will be unable to object later and will be unable to produce evidence of his own expert, unless the other party agrees or the court permits it.

PRE-ACTION DISCLOSURE

An application may be made for pre-action disclosure. The claimant should delay issuing proceedings for 21 days from disclosure of the expert's report in order to enable the parties to consider whether a claim is capable of settlement. The CPR (Part 36) permit claimants as well as defendants to make offers to settle at the pre-proceeding stage and the court will take into account any such offer when making any subsequent order as to costs if proceedings are commenced.

COMPLIANCE WITH THE PRE-ACTION PROTOCOL

It is not compulsory to follow the pre-action protocol, however, the court may take into account protocol compliance/non-compliance when giving directions for the management of the case and when making orders for costs. Where there is no applicable protocol, the courts will expect the parties to act reasonably in exchanging information and documents and to generally avoid starting proceedings.

Yours faithfully, ASSURANCEFORENINGEN GARD -gjensidig-

John G. Bernander Managing Director