Solicitors have recognised personal injury pre-action disclosure can be an easy method of recovering costs but some firms are not taking their legal obligations seriously enough
by Alison Wright
29 May 2008
The personal injury pre-action protocol requires employers and companies to disclose various documents relating to accident reporting and investigation, risk assessments and training in claims from employees or members of the public where liability is denied.
Claimant solicitors have recognised pre-action disclosure can be a quick and easy method of recovering costs. Furthermore, companies are not taking their legal obligations seriously enough.
Once a letter of claim is received you should acknowledge it within 21 days. In doing so, you must decide whether the claimant has provided you with enough information to investigate their allegations. If they have not, you should request further information immediately. If the claimant does not provide you with the information requested you will have grounds to oppose any application for disclosure. Bear in mind the fact that you do not have enough information to investigate does not mean you do not need to acknowledge the letter of claim.
Once you have enough information to investigate, you have three months to reach a decision on liability. If liability is denied the reasons must be given and the following documents (where relevant) should be disclosed at the same time: -
accident report/ investigation
pre and post accident risk assessments
correspondence with HSE/Council
This list is not comprehensive and you should take into account that disclosure is no longer limited to paper documents, the rules of disclosure require that you also search for electronic documents.
Initiate an immediate investigation gathering all documents that may be relevant. If you are unsure whether or not a document should be disclosed, ask your brokers/insurers/legal advisers for guidance.
If at any point during investigating the claimant's allegations, you believe you are liable, inform your broker/insurer immediately. If liability is to be admitted you should not wait for the protocol period to come to an end; this ensures applications for disclosure can be avoided, the possibility of early settlement is achievable and ultimately costs saved.
Obviously delays are possible, if not inevitable, when trying to trace documents. Communicating with the claimant's solicitors will buy time and reassure them that their requests are being taken seriously.
Some of the documents requested may not be available or have never existed. This will not necessarily be a problem as long as the claimant's solicitor is aware that this is the reason for non-disclosure.
Writing letters explaining the delay, providing some of the documents and asking for extensions of time to do so are all easy ways of avoiding a costly application.
Make sure you provide your broker/insurer with all information and documents gathered within the protocol period. By doing this you will enable them to communicate with the claimant's solicitors stating whether liability is denied and set out the reasons for any denial. As long as you provide all relevant documents, state that liability is denied (providing reasons for the denial); a claimant's solicitor should be unable to make a successful application for pre-action disclosure. Moreover, if you have a reasonable defence to the allegations, the claimant's solicitors are less likely to commence proceedings.
More frequently, claimant's solicitors are making applications within days of the protocol period expiring. Furthermore, they are making wider applications for disclosure, applying for documents beyond the scope of their entitlement under the pre-action protocol.
If the respondent does not deal with the application swiftly, the claimant's solicitors are more likely to succeed in a court granting the application although the wider the disclosure requested, the more cautious courts are in ordering disclosure. Nevertheless respondents should not give the claimant's solicitors the opportunity to make an application at all.
By not investigating a matter within the three-month period the respondent does not have the opportunity to avoid an application and consequent court order for documents to be provided and costs.
Recent cases have seen costs schedules of as much as £2,000. This is hugely significant as many of the cases that are finally issued settle for less than this in general damages.
Some of this may seem obvious to the reader but the issues set out here are the main reasons applications for disclosure are made. If respondents follow the basic steps, the number of claimant's solicitors making such applications will decrease dramatically.
Further, should an application follow despite real efforts to comply with disclosure obligations, the respondent should be able to defend an application on the grounds that it is brought unreasonably and should rightly expect to recover their costs of opposing it.
Alison Wright is a paralegal at law firm Weightmans
acknowledge letters of claim within 21 days
initiate an immediate investigation gathering all documents that may be relevant
if during investigation you believe you are liable inform your broker/insurer immediately
should the process become delayed, inform the claimant's solicitors, disclose the documents you have and request realistic extensions of time
ensure communication is maintained with the claimant's solicitors throughout
before the protocol period ends provide all relevant information to your broker/insurer so that they can communicate with the claimant's solicitors if liability is denied setting out the reasons and providing documents explaining those that do not exist or can no longer be traced