When a claim for personal injury is made, it’s always desirable for both the claimant and defendant to make a productive and positive start—perhaps even find an alternate route to resolution that doesn’t involve going through the courts at all.
This is where personal injury pre-action protocol comes in, and adhering to it can help save time, stress, and even costs for either party.
What is personal injury pre-action protocol?
Pre-action protocols outline the kind of behaviour a court hopes all parties abide by before formal court proceedings take place. ‘Protocol’ commonly means a set of behaviours and actions that are considered to be best practice and are expected of individuals in certain situations. In this legal sense, it’s no different.
Of course, there are many different reasons that two or more parties might go to court. So, personal injury pre-action protocol defines the conduct that is expected specifically of parties that are dealing with a personal injury claim.
This means that everybody communicates clearly, openly, and in good faith, sharing information and investigating all aspects of the claim as thoroughly as possible.
Perhaps most importantly, personal injury pre-action protocol provides that parties should ideally pursue other avenues of conflict resolution before taking the matter to court. This could be a settlement out of court, which is often more attractive than a potentially protracted court battle.
What does pre-action protocol include?
The protocols are more than just recommendations or guidelines. They include essential steps to be followed at the beginning of a claim, and a court can choose to penalise either party if they feel that there was not satisfying observation of protocol.
These steps include:
Claimant letter
The claimant’s solicitor sends a letter to the defendant (or their insurers) that officially notes their intention to make a claim. This letter should contain as much clear information as possible pertaining to the nature of the claim, including its intended value and any financial losses and/or injuries sustained by the claimant.
The letter should also include details such as the hospital where the claimant received treatment if applicable, as is common in road traffic accidents. This allows the defending side to begin their own investigations as necessary.
If the solicitor needs more time or information to prepare the letter of claim, a letter of notification should be sent to the defendant give them advance warning of the incoming claim.
Defendant response
Once the letter of claim has been sent, the defendant or their insurers should respond within 21 calendar days. If they feel any significant information was missing from the letter of claim that changes the context of the case, this should be made known in their response.
Once the letter of claim has been acknowledged, the defendant’s side has a maximum of three months in which they can conduct their own investigation and provide a detailed response.
This response should clearly state whether the defendant admits liability by agreeing that the accident took place as stated and that their actions or negligence led to the outcome.
If the defendant doesn’t claim liability for the incident in question, the response should give their recount of events and provide any evidence to support this.
If the letter of claim doesn’t receive a response from the defendant or their insurers, the claimant has the right to issue court proceedings.
Expert input
For claims of personal injury, a medical expert will need to provide their professional opinion and evidence to support the claim. Other expert input may be needed to support the claim, and the protocol provides that the chosen experts are agreed upon by both parties in order to avoid any bias in selection.
The defendant should have a chance to see the medical report and either agree on it or dispute it.
Alternate dispute resolution
If both parties agree that there is a claim to be addressed, they should abide by the recommendations of the protocol and explore their options for alternate resolution.
Essentially, alternate resolution is anything that allows the parties to settle the matter without court proceedings. This commonly takes the form of an out-of-court settlement, wherein the claimant is paid compensation as full and final resolution.
Agreeing to a settlement is generally preferable for as it saves the time and cost that goes into court proceedings, and it presents no risk to either side. If the defendant admits to fault then a protracted battle is pointless, thus a quick and clean settlement that ties the matter up for all parties involved being the best choice.
Resisting or failing to explore alternate dispute resolution can be penalised by the courts, so all parties need to pursue options in good faith.
Stock take
This can be seen as the final stage of protocol before taking a matter to court. If alternate resolution can’t be agreed upon, parties are encouraged to ‘stock take’ and re-evaluate their positions.
All sides should analyse their stance and evaluate the strengths and weaknesses of their respective positions.
Going to court for a personal injury claim
If you need the help of a qualified, experienced solicitor to guide you through personal injury pre-action protocol or with court proceedings resulting from personal injury, contact Mark Reynolds Solicitors.
Our team can provide thorough advice backed by years of collective experience and show you the way to the respect and compensation you deserve.
To find out more about our services, contact us today.