Kerry Underwood

PRE-ACTION PROTOCOLS AND ALTERNATIVE DISPUTE RESOLUTION

with 3 comments


Pre-Action Conduct is covered by a Practice Direction supplemented by 11 Pre-Action Protocols in relation to specific areas set out below and Paragraph 9 of the Practice Direction sets out requirements that apply in all cases except where a relevant pre-action protocol contains its own provisions about the topic.

I wonder how many people have supplied the mandatory information in a debt claim where the claimant is a business and the defendant is an individual. This is dealt with in Annex B of the Practice Direction and requires the provision of full details as set out there of the National Debtline, Consumer Credit Counselling Service, Citizens Advice and the Community Legal Service.

The Mitchell judgment and related decisions are dealt with in my piece Relief From Sanctions although as stated above some courts are applying the Mitchell principle to all aspects of every order, rule and Practice Direction. The Mitchell judgment has been somewhat softened by the Court of Appeal decision in the conjoined Denton appeals [2014] EWCA 906, but it is important to note that here the Court of Appeal said:-

“We consider that the guidance given at paras 40 and 41 of Mitchell remain substantially sound.” (Paragraph 24).

Those “substantially sound” paragraphs read:-

“40.        We hope that it may be useful to give some guidance as to how the new approach should be applied in practice. It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle “de minimis non curat lex” (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.

41. If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting

party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event.”

Gordon Exall in his excellent blog Civil Litigation Brief, http://civillitigationbrief.wordpress.com/, which I strongly recommend, said in “Surviving Mitchell 6: “You Gotta Have a Plan”

“The proper use of the Pre-Action Protocol means that in most cases a claimant should have a clear idea of the issues in the case prior to issue. We all know that theory and practice are often divorced. However we now work in an age where mistakes cannot be made.”

There are 11 Pre-Action Protocols covering the following specific areas:-

–          Construction and Engineering Disputes

–          Defamation

–          Judicial Review

–          Possession Claims based on rent arrears

–          Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property

–          Housing Disrepair

–          Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (the Dilapidations Protocol)

–          Professional Negligence

 

Personal Injury

Clinical Disputes

Disease and Illness

 I deal with the three personal injury related Pre-Action Protocols below, but not with the portals covering Road Traffic matters and Employers’ Liability and Public Liability matters.

The basic concept is that before proceedings are issued the parties should:

(1)    exchange sufficient information to allow the parties to make informed decisions about settlement and how to proceed;

(2)    attempt to resolve the matter without issuing proceedings and in particular should consider Alternative Dispute Resolution.

(3)    act in a reasonable and proportionate manner in dealing with one another; in particular the costs incurred in complying with the protocols should be proportionate to the complexity of the matter and any money at stake.

The parties should not use the Practice Direction as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs.

 

Exchanging information before starting proceedings

Before starting proceedings –

(1)    the claimant should set out the details of the matter in writing by sending a letter before claim to the defendant; and

(2)    the defendant should give a full written response within a reasonable period, preceded if appropriate by a written acknowledgement of the letter before claim.

A reasonable period of time will vary but as a general guide

(1)    the defendant should send a letter of acknowledgement within 14 days of receipt of the letter before claim (if a full response has not been sent within that period);

(2)    where the matter is straightforward, for example an undisputed debt, then a full response should normally be provided within 14 days;

(3)    where a matter requires the involvement of an insurer or other third party or where there are issues about evidence, then a full response should normally be provided within 30 days;

(4)    where the matter is particularly complex, for example requiring specialist advice, then a period of longer than 30 days may be appropriate;

(5)    a period of longer than 90 days in which to provide a full response will only be considered reasonable in exceptional circumstances.

Annex A to the Practice Direction sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol applies and where the claimant does not follow any statutory or other formal pre-action procedure.

Annex B sets out the specific information that should be provided in a debt claim by a claimant which is a business against a defendant who is an individual.

 

Requirements that apply in all cases

Paragraph 9 of the Practice Direction sets out requirements that apply in all cases except where a relevant pre-action protocol contains its own provisions about the topic.

 

Disclosure

Documents provided by one party to another in the course of complying with this Practice Direction or any relevant pre-action protocol must not be used for any purpose other than resolving the matter, unless the disclosing party agrees in writing.

 

Experts

Where the evidence of an expert is necessary the parties should consider how best to minimise expense.  Guidance on the instruction of experts is set out in Annex C.

 

Limitation periods

Complying with a pre-action protocol does not affect limitation and does not prevent a defendant pleading limitation as a defence.

If, for any reason, proceedings are started before the parties have complied with a pre-action protocol then they should try and agree an application to the court for a stay while the steps are concluded.

 

Extension of Time For Serving Claim Form

In Lincolnshire County Council v Mouchell Business Services Limited and R G Carter Building Services Limited [2014] EWHC 352 (TCC)

Mr Justice Stuart-Smith set aside an extension of time for serving the Claim Form, which extension had been obtained without notice to the other side.  The effect was that the claim was struck out as it had not been served in time.

The court endorsed the statement in Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 were the Court of Appeal said:

“Thus if a claimant applies for and obtains an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril.  He should know that an order obtained in such circumstances may be set aside.  He can take no comfort from the fact that the court has made the order.  He cannot be heard subsequently to say that it was the court’s fault that the order was made”.

At paragraph 1 of the judgment the court said:

“Where a party issues protective proceedings hard up against the expiry of the limitation period, it is expected to pursue those proceedings promptly and effectively; and if it subsequently seeks and obtains orders extending time for the service of the Claim Form or Particulars of Claim without notice to the other party, it dices with procedural death.  These simple propositions should be known to all professionals conducting litigation.  They were established long before the recent reforms of the Civil Procedure Rules”.

Neither the fact that the provisions of the pre-action protocol had not yet been complied with, nor the prospect that serving proceedings might lead to an increase in costs because of that non-compliance, were good reasons for failing to serve the Claim Form.

The court said:

“The court will expect the parties to have complied with any relevant pre-action protocol and will take any failure to do so into account where exercising its general powers of management, including its power to grant relief from sanctions under CPR 3.9”.

 

Notifying the court

The claimant should state in the claim form on particulars of claim whether the relevant parts of the Practice Direction and any relevant specific protocol have been complied with.

 

Undisputed debt

The Annex A guidance need not be followed in a debt claim where it is not disputed that the money is owed and where the claimant follows a statutory or other formal pre-action procedure.

 

RELIEF FROM SANCTIONS AND THE PRE-ACTION PROTOCOLS

Section II of the Practice Direction in relation to Pre-Action Conduct deals with the approach of the courts to compliance and gives examples of non-compliance and sets out the sanctions for non-compliance.

As the Practice Direction contains sanctions the full effect of the decision of the Court of Appeal in

Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 as clarified in the Denton cases [2014] EWCA Civ 906.

Paragraph 4.5 provides that the court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions and 4.6 sets out the potential sanctions:

(1)          staying (that is suspending) the proceedings until steps which ought to have been taken have been taken;

(2)          an order that the party at fault pays the costs, or part of the costs, of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track);

(3)          an order that the party at fault pays those costs on an indemnity basis (rule 44.3(3) sets out the definition of the assessment of costs on an indemnity basis);

(4)          if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded;

(5)          if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded.

Paragraph 4.4 gives a non-exhaustive list of examples of non-compliance including:

–          failure to provide sufficient information to enable the other party to understand the issues;

–          not complying with time limits, or where no specific time limit applies, failing to act within a reasonable period;

–          not disclosing documents requested, unless there is good reason not to do so;

–          unreasonably refusing to consider ADR.

Thus it will be seen that unreasonably refusing to consider ADR may give rise to sanctions and relief from those sanctions is now a lottery given the Court of Appeal’s decision in Mitchell.

 Paragraph 4.4(3) reinforces the point in relation to ADR by highlighting that “Paragraph 8 in Part III of this Practice Direction and the pre-action protocols all contain similar provisions about ADR”.

Paragraph 4.3 states that when considering compliance the court will be concerned about whether the parties have complied in substance with the relevant principles and requirements and is not likely to be concerned with minor or technical shortcomings.  It will also consider the proportionality of the steps taken compared to the size and importance of the matter.

The court will also take account of the urgency of the matter; thus where a matter is urgent, for example, an application for an injunction, then the court will expect the parties to comply only to the extent that it is reasonable to do so.

However all of this must be read subject to the Mitchell decision which has rejected any notion of reasonableness in favour of an extreme hard line.

See also the case of Lincolnshire County Council v Mouchell Business Services Limited and R G Carter Building Services Limited [2014] EWHC 352 (TCC) discussed above under Extension of Time For Serving Claim Form.

 

Alternative Dispute Resolution and Mediation

The Practice Direction in relation to Pre-Action Conduct in all civil litigation states that the aims of the Practice Direction are to be achieved by encouraging the parties to exchange information about the issue and to consider using a form of Alternative Dispute Resolution (“ADR”). (Paragraph 1.2).

Paragraph 3(3) states:

“ADR” means alternative dispute resolution, and is the collective description of methods of resolving disputes other than through the normal trial process”.

Paragraph 4(4)(3) states that the court may decide that a party has failed to comply with the Practice Direction if it has unreasonably refused to consider ADR.

Paragraph 6.1(2) states that, unless the circumstances make it inappropriate, before starting proceedings the parties should make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.

Paragraph 8 of the Practice Direction is headed “Alternative Dispute Resolution” and provides as follows:

“8.1        Starting proceedings should usually be a step of last resort, and proceedings should not normally be started when a settlement is still actively being explored.  Although ADR is not compulsory, the parties should consider whether some form of ADR procedure might enable them to settle the matter without starting proceedings.  The court may require evidence that the parties considered some form of ADR (see paragraph 4.4(3)).

8.2          It is not practicable in this Practice Direction to address in detail how the parties might decide to resolve a matter.  However, some of the options for resolving a matter without starting proceedings are –

(1)    discussion and negotiation;

(2)    mediation (a form of negotiation with the help of an independent person or body);

(3)    early neutral evaluation (where an independent person or body, for example a lawyer or an expert in the subject, gives an opinion on the merits of a dispute); or

(4)    arbitration (where an independent person or body makes a binding decision), many types of business are members of arbitration schemes for resolving disputes with consumers.

8.3          The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (www.clsdirect.org.uk) which lists a number of organisations that provide alternative dispute resolution services.  The National Mediation Helpline on 0845 603 0809 or at www.nationalmediationhelpline.com can provide information about mediation.

8.4          The parties should continue to consider the possibility of reaching a settlement at all times. This still applies after proceedings have been started, up to and during any trial or final hearing”.

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 Annex A deals with the contents of a claimant’s letter before action and provides that the letter should set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this (paragraph 2(2)).

Unless the defendant accepts the whole of the claim it should state whether it agrees to the claimant’s proposals for ADR and if not, state why not and suggest an alternative form of ADR or state why none is considered appropriate.  (Paragraph 4.4 of Annex A).

The protocols vary in their scope.  For example the Housing Disrepair protocol contains an extensive range of precedent letters, instructions to experts and even a draft bill of costs.

The protocols do not generally overlap.  An exception is the Housing Disrepair protocol as such claims often involve personal injury cases, which have their own protocols.

Paragraphs 4.4 (c-e) of the Housing Disrepair protocol deal with cases involving a personal injury element and generally the Personal Injury protocol should be used for that element.

4.4(c) provides that where there is a personal injury element that fact should be set out in the Letter of Claim, as should a clear indication of the identities of all persons who plan to make a personal injury claim.

Paragraph 3.3(a)(v) refers to the effect of the defects on “the tenant”.  This should be taken to include all persons who have a personal injury claim and details of any such claim and of all likely claimants should be set out in the Letter of Claim (4.4(e)).

Paragraph 4.4(d) reads:

“(d)        There is also a Personal Injury Protocol.  This Protocol should be followed for that part of the disrepair claim which forms a personal injury claim, unless it is insufficient to warrant separate procedures and would therefore be dealt with only as part of the disrepair claim and evidenced by a General Practitioner’s letter.  The Personal Injury Protocol should be followed for any claim which requires expert evidence other than a General Practitioner’s letter. If the disrepair claim is urgent, it would be reasonable to pursue separate disrepair and personal injury claims, which could then be case managed or consolidated at a later date”.

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 Reference is made in several of the protocols to Leaflet 23 produced by the Legal Services Commission.  I have not included that leaflet in these notes as it is nine years out of date, but go to the link if you want it.

The following sections deal with references to ADR occurs in the specific protocols:

 

Construction and Engineering Disputes

Consideration of ADR in construction and engineering disputes is regarded as particularly important and the protocol reflects that.

Under Paragraph 2 (vi) the parties are required to have met formally on at least one occasion with a view to defining and agreeing the issues between them and exploring possible ways by which the claim may be resolved.

Paragraph 5.1 states that within 28 days after receipt by the claimant of the defendant’s letter of response, or, if the claimant intends to respond to any counterclaim, after receipt by the defendant of the claimant’s letter of response the parties should normally meet.

5.2 provides that one of the purposes of the meeting is to see whether, and if so how, the issues might be resolved without recourse to litigation.

More than one meeting may be necessary and 5.3 sets out who should attend such meetings.  Except as provided in paragraph 5.6, everything said at a pre-action meeting shall be treated as “without prejudice”.

5.4 reads:

“In respect of each agreed issue or the dispute as a whole, the parties should consider whether some form of alternative dispute resolution would be more suitable than litigation, and if so, endeavour to agree which form to adopt.  It is expressly recognised that no party can or should be forced to mediate or enter into any form of alternative dispute resolution”.

5.6 provides that any party who attended any pre-action meeting shall be at liberty, and may be required to disclose to the court, among many other things, the fact of whether alternative means of resolving the dispute were considered or agreed.

Defamation

Paragraphs 3.7 to 3.9 are headed “Alternative Dispute Resolution” and read as follows:

“3.7        The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt.  Both the Claimant and Defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered.  The courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored.  Parties are warned that if the protocol is not followed (including this paragraph) then the court must have regard to such conduct when determining costs”.

3.8          It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute.  However, summarised below are some of the options for resolving disputes without litigation:

  • Discussion and negotiation;
  • Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of defamation or an individual experienced in the subject matter of the claim);
  • Mediation – a form of facilitated negotiation assisted by an independent neutral party;
  • Reference to the Press Complaints Commission (an independent body which deals with complaints from members of the public about the editorial content of newspapers and magazines).

The Legal Services Commission has published a booklet on “Alternatives to Court”, CLS Direct Information Leaflet 23 (www.clsdirectory.uk/legalhelp/leaflet23.jsp). Which lists a number of organisations that provide alternative dispute resolution services.

3.9          It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR”.

 

Judicial Review

Paragraphs 3.1 to 3.4 are headed “Alternative Dispute Resolution and 3.1 reads as follows:

3.1          The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs. However, parties should also note that a claim for judicial review ‘must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose’.

Again reference is made to the Legal Services Commission leaflet (see above – Defamation) and the fact that it is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.

Suggested options for resolving Judicial Review proceedings without litigation are:

  • Discussion and negotiations.
  • Ombudsman – the Parliamentary and Health Service and the Local Government Ombudsmen have discretion to deal with complaints relating to maladministration.  The British and Irish Ombudsman Association provide information about Ombudsman schemes and other complaint handling bodies and this is available from their website and www.bioa.org.uk.  Parties may wish to note that the Ombudsmen are not able to look into a complaint once court action has been commenced.
  • Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of administrative law or an individual experienced in the subject matter of the claim).
  • Mediation – a form of facilitated negotiation assisted by an independent neutral party.

 

Possession Claims based on rent arrears

 Paragraph 11 is headed “Alternative Dispute Resolution” and reads:

“11.        The parties should consider whether it is possible to resolve the issues between them by discussion and negotiation without recourse to litigation. The parties may be required by the court to provide evidence that alternative means of resolving the dispute were considered. Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored.

The Legal Services Commission leaflet is referred to.

 

Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property

 There is no specific reference to ADR but Paragraph 7 is headed “Further matters to consider before starting a possession claim” and reads:

“Starting a possession claim should normally be a last resort and such a claim must not normally be started unless all other reasonable attempts to resolve the position have failed. The parties should consider whether, given the individual circumstances of the borrower and the form of the agreement, it is reasonable and appropriate to do one or more of the following –

(1) extend the term of the mortgage;

(2) change the type of mortgage;

(3) defer payment of interest due under the mortgage;

(4) capitalise the arrears; or

(5) make use of any Government forbearance initiatives in which the lender chooses to participate”.

 

Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (the “Dilapidations Protocol”)

 Paragraph 8 is headed up “Alternative Dispute Resolution” and reads:

“8.1        The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the landlord and the tenant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. The courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that the court will take into account the extent of the parties’ compliance with this protocol when making orders about who should pay costs (see CPR rule 44.3(4) and (5)(a)).

8.2          Information on mediation and other forms of alternative dispute resolution may be found through the following: http://www.justice.gov.uk/guidance/mediation/index.htm. The Royal Institute of Chartered Surveyors (www.rics.org/) and Property Litigation Association (www.pla.org.uk) websites also list a number of experienced mediators.

8.3          It is expressly recognised that no party can or should be forced to mediate or enter into any form of alternative dispute resolution”.

 

Professional Negligence

 Paragraph B.6 is headed “Alternative Dispute Resolution” and refers to the Legal Services Commission Leaflet 23 and has the standard phrase – “it is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR” and at B6.1 reads:

“B6.1     The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and professional may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs”.

Suggested options are:

  • Discussion and negotiation
  • Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of professional negligence or an individual experienced in the subject matter of the claim).
  • Mediation – a form of facilitated negotiation assisted by an independent neutral party.

 

Housing Disrepair

 Alternative Dispute Resolution is regarded as of particular importance in Housing Disrepair cases and  one of the stated aims of the protocol is to enable the parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings.  (Paragraph 2(2)).  The protocol contains the usual wording about penalties in costs for not seeking to resolve matters without litigation.

Paragraph 4 is headed “GUIDANCE NOTES” and 4.1 is headed “Alternative Dispute Resolution”.

It contains details of many organisations which can give advice and information.

As usual it is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.

Suggested options for resolving disputes without litigation are:

  • Discussion and negotiation;
  • Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of housing disrepair or an individual experienced in the subject matter of the claim);
  • Mediation – a form of facilitated negotiation assisted by an independent neutral party.

Private tenants may consider using local authority environmental health officers.

Tenant of social landlords who are not council tenants and tenants of qualifying private landlords may refer the matter to the Independent Housing Ombudsman (England) or the National Assembly for Wales (Wales).

Council tenants may consider:

  • local authority repairs, complaints and/or arbitration procedures;
  • the Right to Repair scheme, but this is only suitable for small, urgent repairs of less than £250.00.

 

PERSONAL INJURY PRE-ACTION PROTOCOLS

 I do not deal with the Road Traffic Portal or the Employers’ Liability and Public Liability Portal, both of which are covered in my piece Fixed Costs, all the Portals and Fixed Recoverable Costs.

The Practice Direction in relation to Pre-Action Conduct applies in full in relation to personal injury claims in the absence of any specific provision in one of the three personal injury protocols.

Note too that the Pre-Action protocol applies to Part 8 proceedings re costs.

 

Pre-Action Protocol for Personal Injury Claims

 Paragraph 1.2 lists the aims of the pre-action protocols:

  • more pre-action contract between the parties;
  • better and earlier exchange of information;
  • better pre-action investigation by both sides;
  • to put the parties in a position where they may be able to settle cases fairly and early without litigation;
  • to enable proceedings to run to the court’s timetable and efficiently, if litigation does become necessary;
  • to promote the provision of medical or rehabilitation treatment (not just in high value cases) to address the needs to the claimant.

Paragraph 1.3 states that this will help achieve predictability in the time needed for steps pre-proceedings and standardisation of relevant information, including documents to be disclosed.

Courts may treat the standards in the protocols as the normal approach to pre-action conduct and if proceedings are issued it will be for the court to decide whether non-compliance should “merit adverse consequences”. (Paragraph 1.4).

Paragraph 1.5 reads:

“1.5        If the court has to consider the question of compliance after proceedings have begun, it will not be concerned with minor infringements, e.g. failure by a short period to provide relevant information. One minor breach will not exempt the ‘innocent’ party from following the protocol. The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions”.

The protocol applies to all personal injury claims, except those covered by the Disease and Illness protocol and the Clinical Dispute protocol.  The Road Traffic portal and the Employers’ Liability and Public Liability portal have effectively taken most personal injury cases out of this protocol in relation to part of the pre-issue process.

It is important to note that this protocol retains its full force in non-portal claims, most particularly multi-track claims.  Cases exiting the portals are also covered as they are still “pre-action”.  Thus the scope of the protocol is all claims exiting the portal and all claims that never went into the portals, except disease and clinical negligence claims.

Given the potential for abuse in the Fixed Recoverable Costs Scheme, which applies to cases exiting the portal, and the general stance of the Jackson courts the pre-action conduct of parties in personal injury cases will now be subject to greater scrutiny than ever before.

Paragraph 2.4 is the key in multi-track claims:

“2.4        However, the ‘cards on the table’ approach advocated by the protocol is equally appropriate to higher value claims. The spirit, if not the letter of the protocol, should still be followed for multi-track type claims. In accordance with the sense of the civil justice reforms, the court will expect to see the spirit of reasonable pre-action behaviour applied in all cases, regardless of the existence of a specific protocol. In particular with regard to personal injury cases with a value of more than the fast track limit, to avoid the necessity of proceedings parties are expected to comply with the protocol as far as possible e.g. in respect of letters before action, exchanging information and documents and agreeing experts”.

2.5 is also an important paragraph.  While accepting that the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case it gives a clear warning that where this happens and the case is subsequently issued “the court will expect an explanation as to why the protocol has not been followed, or has been varied.”

Thus the courts, often many years after the conduct in a multi-track case, will scrutinize pre-action conduct.  In the current Jackson Reign of Terror that is indeed a frightening prospect.

Paragraph 2.6 specifically allows for early notification of a claim, that is before a claimant has sufficient information to send a letter of claim.

The Protocol has a specimen letter of claim at Annex A which is comprehensive and helpful.  However the penultimate paragraph, dealing with recoverable conditional fee success fees and after-the-event insurance premiums now needs deleting.

Paragraph 2.9 states that the priority at letter of claim stage is for the claimant o provide sufficient information to enable the defendant, or more often the defendant’s insurer, to assess liability and to estimate the likely value of the claim.

Once the claimant has sent the letter of claim no further work on liability should be carried out until the defendant’s response on liability has been received. (2.10).  Given that the protocol at 2.11 recommends that a defendant be given three months to investigate and respond to a claim before proceedings are issued, this is an easy one to fall foul of.

The protocol recognizes that it may not always be possible to allow the defendant three months to respond, for example the limitation period may be about to expire.  In such circumstances the claimant’s solicitor should give as much notice as practicable of the intention to issue proceedings.  The parties should consider asking the court to extend time for service of the claimant’s supporting documents and any defence.

Alternatively the parties should ask the court to stay proceedings to enable the protocol to be observed.

Paragraph 2.10A provides that a Claim Notification Form completed under either the Road Traffic Accident portal or the Employers’ Liability and Public Liability portal may stand as the letter of claim unless the defendant has notified the claimant that there is inadequate information in the Claim Notification Form.

Letters of claim and responses do not have the same status as a statement of case in proceeding and it is accepted that matters may come to light as a result of investigation after the letter of claim or response.  Thus the pleaded case may be “slightly different than in the letter of claim and response”.

Note the word “slightly”.  The statement in paragraph 2.12 that it would not be consistent with the spirit of the protocol to “take a point” in the proceedings on any slight difference “provided that there was no obvious intention by the party who changed their position to mislead the other party” must be regarded as doubtful post-Mitchell.  Clearly the Mitchell decision encourages every party to take every point, however trivial or technical, with every chance of succeeding on it, although the Denton cases [2014] EWCA Civ 906 say that a party unreasonably taking a Mitchell point can expect to be heavily punished in costs.

 

Experts

The protocol encourages joint selection of, and access to, experts, but any subsequent report is not a joint report under CPR 35.  The protocol promotes the practice of the claimant obtaining a medical report and disclosing it to the defendant with the defendant then agreeing the report or asking questions and not obtaining its own report.

It is recognized that some solicitors may wish to instruct a medical agency.  The defendant’s prior consent should be sought and, if the defendant so requests, the agency should be asked to provide in advance the names of the doctor or doctors to be instructed. (Paragraph 2.15).

 

Alternative Dispute Resolution

The protocol suggests the following as some of the options for resolving disputes without litigation in personal injury matters:

  • discussion and negotiations;
  • early neutral evaluation by an independent third party, for example a lawyer experienced in personal injury cases or an individual experienced in the subject matter of the claim;
  • mediation, defined as a form of facilitated negotiation assisted by an independent neutral party.

It is expressly recognized that no party can or should be forced to mediate or enter into any form of ADR, but failure to do so can result in severe penalties.  Specifically parties “are warned that if the protocol in not followed (including this paragraph) then the court must have regard to such conduct when determining costs”.

In simple terms a party which refuses ADR, or refuses to consider ADR may lose all costs, and even be ordered to pay costs, even if wholly successful in the claim.

So saying that no-one can be forced into ADR is like saying that no-one can be forced not to shoplift, but if they do they will have their hands cut off.

Paragraphs 2.16 to 2.19 deal with ADR and should be read carefully.

 

The Letter

Paragraph 3 sets out what should be contained in the letter of claim and recommends use of the standard letter at Annex A of the protocol unless it is a claim which has exited one of the portals in which case the Claim Notification Form may stand as the letter of claim.

The letter of claim should be sent “immediately sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail”.  This raises the prospect of being Michelled for not sending a letter of claim “immediately”.

Two copies of the letter must be sent, one for the defendant and one for the insurer and if the insurer is known “a copy shall be sent directly to the insurer”.  The protocol has not yet caught up with the concept of emails.

The client’s National Insurance number should not be supplied in the letter of claim, but only to the defendant’s insurer.  On the basis that failure to remove the square brackets on a statement of truth now attracts the litigation equivalent of the death penalty one presumes that including the NI Number in the letter of claim will result in hanging and quartering as the tricoteurs of the Court of Appeal (Jackson Division) watch on.

Sufficient information should be given in order to enable the defendant’s insurer/solicitor “to commence investigations and at least put a broad valuation on the “risk””.

 

The Response

The defendant has 21 calendar days from the date of posting of the letter to identify the insurer and identify specifically any significant omissions from the letter of claim, and the insurer has a further three months from the date of that acknowledgment to investigate.

For an accident outside the jurisdiction of England and Wales those periods are increased to 42 days and six months.

By the end of the relevant period the insurer, or defendant if no insurer, must state, with reasons, if liability is denied and must give the alternative version of events relied upon.

Where the claimant’s investigation indicates that the value of the claim has increased since the letter of claim so as to take it out of the fast track, the claimant should notify the defendant as soon as possible.

Although not required it is clearly good practice to advice the defendant of any significant increase, or indeed decrease, in the value of the claim even if this does not have the potential effect of moving it from the fast- track to the multi-track.

 

Disclosure of documents

If the defendant denies liability it should enclose with the letter of reply all documents in its possession which are material to the issues between the parties and which would be likely to be ordered to be disclosed either by way of pre-action disclosure or on disclosure during proceedings.

Although described as disclosure this is in fact a requirement to provide full inspection of all documents by way of copies, rather than a requirement merely to disclose a List of Documents.

Privileged documents remain immune from disclosure as they are not documents which “would be likely to be ordered to be disclosed by the court”.

Annex B to the protocol contains special, but non-exhaustive, lists of documents likely to be material in 18 different types of claim.  Although technically non-exhaustive in the sense that the defendant has a duty to supply any relevant documents not contained in the Annex B, it is in fact a very comprehensive and useful list.

 

Contributory Negligence

Where the defendant alleges contributory negligence it must give reasons supporting those allegations and supply those documents from Annex B relevant to the disputed issues.

The claimant should respond to the contributory negligence allegations before issuing proceedings.

 

Special Damages

The claimant must send to the defendant “as soon as practicable” a Schedule of Special Damages with supporting documents (3.14).  This is another Jackson bear trap.

 

Costs

“No charge will be made for providing documents under the protocol”.  (Paragraph 3.13).

Presumably this means no legal costs for collating and locating the documents, not just no costs for sending them.

The 18 types of claim set out in Annex B are:

  • road traffic accidents;
  • road traffic accidents where defendant’s vehicle is a commercial vehicle;
  • cases against local authorities where a highway design defect is alleged;
  • highway tripping claims;
  • workplace claims – general;
  • workplace claims under the following specific regulations:

o   Workplace (Health Safety and Welfare) Regulations 1992;

o   Provision and Use of Work Equipment Regulations 1998;

o   Personal Protective Equipment and Work Regulations 1992;

o   Manual Handling Operations Regulations 1992;

o   Health and Safety (Display Screen Equipment) Regulations 1992;

o   Control of Substances Hazardous to Health Regulations 1999;

o   Construction (Design and Management) (Amendment) Regulations 2000;

o   Pressure Systems and Transportable Gas Containers Regulations 1989;

o   Lifting Operations and Lifting Equipment Regulations 1998;

o   The Noise at Work Regulations 1989;

o   Construction (Head Protection) Regulations 1989;

o   The Construction (General Provisions) Regulations 1961;

o   Gas Containers Regulations 1989.

 

Experts

Annex C is a specimen letter of instruction to an expert.

The claimant’s solicitor must organize access to relevant medical records.

Before any party instructs an expert is should give the other party a list of the name or names of one or more experts in the relevant specialty which it is considered suitable to instruct.

The other party has 14 days to object to one or more of the experts.  The first party should then instruct one of those experts not objected to.  This expert is known as a “mutually acceptable expert” which is specifically stated to be not the same as a joint expert.

If the claimant nominates an expert in the letter of claim then the defendant has 35 days to object.

If the second party objects to all of the listed experts then the parties may instruct experts of their own choice, with the court subsequently deciding whether either party acted unreasonably.

If the second party does not object to the nominated expert then it shall not be entitled to rely on its own expert evidence within that specialty unless one of the three following conditions is satisfied:

(a)    the first party agrees; or

(b)   the court so directs; or

(c)    the first party’s expert report has been amended and the first party is not prepared to disclose the original report.

Either party may send written questions to an agreed expert via the first party’s solicitors.  The expert must send answers separately and directly to each party.

The initial cost of a report from an agreed expert is to be paid by the instructing first party and the costs of the expert replying to questions are to be paid initially by the questioning party.

Ultimately costs are costs in cause,; generally the winner recovers them.

Rehabilitation

Both parties shall consider as early as possible whether the claimant has reasonable needs which could be met by rehabilitation treatment or other measures (paragraph 4.1), and how those needs might be addressed, but this does not shorten the defendant’s time for supplying the letter of response, except by consent.

No rehabilitation report may be used in litigation without the consent of both parties and in any event any such report is exempt from all of the provisions in the protocol relating to experts (paragraph 4.4).

Annex D to the protocol is the 2007 Rehabilitation Code.

The Rehabilitation Code applies “whatever the severity of the injuries sustained” by the client, and thus applies to minor, as well as severe, injuries and everything in between.

“Therefore, in every case, where rehabilitation is likely to be of benefit, the earliest possible notification to the compensator of the claim and of the need for rehabilitation will be expected”.

Paragraph 2.1 speaks for itself:

“2.1        It should be the duty of every claimant’s solicitor to consider, from the earliest practicable stage, and in consultation with the claimant, the claimant’s family, and where appropriate the claimant’s treating physician(s), whether it is likely or possible that early intervention, rehabilitation or medical treatment would improve their present and/or long term physical and mental well being. This duty is ongoing throughout the life of the case but is of most importance in the early stages”.

Specific matters to be considered include aids, adaptations, adjustments to employment and retraining for new employment.

The compensator should respond within 21 days of any request.

The Code sets out in detail the procedure for obtaining an assessment report and how any recommendations should be dealt with.

 

Admission of Liability

Where the defendant admits liability the claimant should send to the defendant schedules of special damages and should not issue proceedings for 21 days unless the limitation period expires during that period (5.3).

The claimant should also serve any medical reports upon which it intends to rely and should refrain from issuing proceedings for 21 days unless the limitation period expires during that period (5.2).

 

Part 36

Each party should, before issuing proceedings, consider if it is appropriate to make a Part 36 offer and any such offer should be backed up by sufficient information to allow the offer to be considered properly (5.2).

It is hard to see how a claimant can justify failure to make a Part 36 offer on liability at the same time as initial notification of the claim.

 

DISEASE AND ILLNESS CLAIMS

The Introduction, dealing with the aims and concepts of the Pre-Action Protocol for Disease and Illness Claims is for all intents and purposes the same as for the Pre-Action Protocol in Personal Injury Claims – see above.

 

Scope

This protocol covers all personal injury claims where the injury is not as the result of an accident but takes the form of an illness or disease, and must be read in conjunction with the Practice Direction on Pre-Action Conduct (Paragraph 4) – see above.

Disease for the purpose of this protocol “primarily covers any illness physical or psychological, any disorder, ailment, affliction, complaint, malady or derangement other than a physical or psychological injury solely caused by an accident or other similar single event”.

Conditions caused by an accident or other single event are governed by the Personal Injury Protocol, but “in appropriate cases it may be agreed between the parties that this protocol can be applied rather than the Pre-Action Protocol for Personal Injury Claims where a single event occurs but causes a disease or illness”. (Paragraph 2.3).

The protocol is not limited to diseases occurring in the workplace; it includes diseases occurring in other situations, for example through occupation of premises or the use of products.

It is not intended to cover those cases dealt with as a group action or a class action.

Paragraph 2.2 states that this protocol “covers disease claims which are likely to be complex and frequently not suitable for fast-track procedures even though they may fall within fast-track limits”.

This is unfortunately worded as it suggests that only certain disease claims are covered; in fact this is simply a description of disease claims and paragraph 2.1 makes it clear that the protocol applies “to all personal injury claims where the injury is not as the result of an accident but takes the form of an illness or disease”.

In relation to the timetables in this protocol it is specifically recognized that “in a terminal disease claim with short life expectancy, for instance where a claimant has a disease such as mesothelioma, the timescale of the protocol is likely to be too long.  In such a claim, the claimant may not be able to follow the protocol and the defendant would be expected to treat the claim with urgency including any request for an interim payment” (2.7).

 

Alternative Dispute Resolution

This section is identical to that in the Personal Injury Protocol save that arbitration is included as an additional potential option for resolving the dispute without litigation.  Arbitration is defined in the protocol as where an independent person or body makes a binding decision.

This protocol also states that the parties “should continue to consider the possibility of reaching a settlement at all times”.  Although these words do not appear in the Personal Injury Protocol this statement represents the law in all civil litigation of all kinds.

 

Interplay with the Employers’ Liability and Public Liability Portal

All cases that exit the Employers’ Liability and Public Liability portal are covered by the relevant protocol, which will be either the Pre-Action Protocol for Personal Injury claims or this Disease and Illness Protocol, depending on the nature of the claim; the scope of the portals is dealt with above.

Uniquely industrial disease claims which exit the portal do not go into the Fixed Recoverable Costs scheme which came in on 31 July 2013.  However they are still covered by this protocol.

 

Relief from Sanctions

Paragraph 1.4 states that the courts will be able to treat the standards set in the protocols as the normal reasonable approach and that if proceedings are issued it will be for the court to decide whether non- compliance with a protocol should merit adverse consequences.

Paragraph 1.5 states that if the court has to consider the question of compliance after proceedings have begun it will not be concerned with minor infringements, eg failure by a short period to provide relevant information.  One minor breach will not exempt the “innocent” party from following the protocol.  The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions.

These paragraphs must now be considered subject to the extreme hard line taken by the Court of Appeal in

Mitchell v News Group Newspapers [2013] EWCA Civ 1537

Indeed the only part that remains certain is that a minor breach by one party will not exempt the other party from following the protocol.  Minor infringements, as in Mitchell itself, are likely to be punished now, even if they occurred several years ago, although this approach has apparently been softened the Denton approach – see Denton cases [2014] EWCA Civ 906.

 

Aims of the Protocol

The aims of the protocol are:

  • to resolve as many disputes as possible without litigation; and
  • where a claim cannot be resolved to identify the relevant issues which remain in dispute;
  • to encourage openness;
  • to encourage speed.

 

Openness

The protocol lists five specific objectives under the above heading:

  • to encourage early communication of the perceived problems between the parties or their insurers;
  • to encourage employees to voice any concerns or worries about possible work related illness as soon as practicable;
  • to encourage employers to develop systems of early reporting and investigation of suspected occupational health problems and to provide full and prompt explanations to concerned employees or former employees;
  • to apply such principles to perceived problems outside the employer/employee relationship, for example occupiers of premises or land and producers of products;
  • to ensure that sufficient information is disclosed by both parties to enable each to understand the other’s perspective and case, and to encourage early resolution.

 

Timelines

Under the above heading nine specific objectives are listed:

  • to provide an early opportunity for employers (past or present) or their insurers to identify cases where an investigation is required and to carry out that investigation promptly;
  • to encourage employers (past or present) or other defendants to involve and identify their insurers at an early stage;
  • to ensure that all relevant records including health and personnel records are provided to employees (past or present) or their appointed representatives promptly on request, by any employer (past or present) or their insurers. This should be complied with to a realistic timetable;
  • to ensure that relevant records which are in the claimant’s possession including where appropriate GP and hospital records are made available to the defendant or to the nominated insurance manager or solicitor representing the defendant by claimants or their advisers at an appropriate stage;
  • to proceed on a reasonable timetable where a resolution is not achievable to lay the ground to enable litigation to proceed at a reasonable and proportionate cost, and to limit the matters in contention;
  • to communicate promptly where any of the requested information is not available or does not exist;
  • to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims;
  • to encourage all parties, at the earliest possible stage, to disclose voluntarily any additional documents which will assist in resolving any issue;
  • to promote the provision of medical or rehabilitation treatment in appropriate cases to address the needs of the claimant.

As per 1.4.

 

Occupational and Health Records

Paragraph 4 sets out the procedure and timetable for obtaining occupational records, including those relating to health.

Annex A1 to the protocol is a suggested form for the potential claimant’s request.

The records should be supplied by the employer at no cost and within 40 days.  if this is not done then the claimant can apply for an order for pre-action disclosure, and this can include disclosure by a third party.

 

Letter of Claim

A standard format letter of claim appears at Annex B of the protocol.

The principles are the same as for general personal injury work – see above.  Paragraph 6.2 deals with the additional information to be provided and Paragraph 6.5 provides that a chronology should be provided and sets out what it should contain.

The status of the letter of claim and response are the same as for general personal injury. The time limit for acknowledgement is within 21 days and a substantive response within 90 days of that acknowledgement.  There is an additional requirement that the defendant notify the claimant within 30 days of the acknowledgement of the identity of all relevant insurers.

Where the negligence occurred outside England and Wales and/or where the defendant is outside the jurisdiction those time limits are doubled to 42 days and 180 days.

Paragraph 6.10A specifically states that where a claim no longer continues under the pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims, the Claim Notification Form (CNF) completed by the claimant under that Protocol can stand as the letter of claim unless the defendant has notified the claimant that it contains inadequate information.

Provisions concerning after-the-event insurance and recoverable success fees no longer apply except for historical purposes and so paragraph 6.3 should now be disregarded as should the appropriate part of 6.2.

The penultimate paragraph of Annex B – Template Letter of Claim – should therefore be deleted.

 

The Response

There is no template Letter of Response but Paragraph 7.3 sets out what the defendant should do within 90 days of the acknowledgement letter.

Where it is not practicable for the defendant to complete investigations within 90 days it should advise the claimant of the reasons and the further time required.

Any request for an extension of time should be made, with reasons, as soon as the defendant becomes aware that an extension is needed and normally before the 90 days period has expired.

Such an extension should be agreed where reasonable justification has been shown. Lapse of many years since the circumstances giving rise to the claim does not, by itself, constitute reasonable justification.

Following Jackson and Mitchell defendants risk summary judgement being granted against them if they do not comply with the part of the protocol which appears at paragraph 7.5.

  • if the claim is admitted, they should say so in clear terms;
  • if only part of the claim is admitted they should make clear which issues of fault and/or causation and/or limitation are admitted and which remain in issue and why;
  • if the claim is not admitted in full, they should explain why and should, for example, include comments on the employment status of the claimant, (including job description(s) and details of the department(s) where the claimant worked), the allegations of fault, causation and of limitation, and if a synopsis or chronology of relevant events has been provided and is disputed, their version of those events;
  • if the claim is not admitted in full, the defendant should enclose with his letter of reply documents in his possession which are material to the issues between the parties and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings. Reference can be made to the documents annexed to the personal injury protocol.
  • where more than one defendant receives a letter of claim, the timetable will be activated for each defendant by the date on the letter of claim addressed to them. If any defendant wishes to extend the timetable because the number of defendants will cause complications, they should seek agreement to a different timetable as soon as possible.

 

Special Damages

The claimant must send to the defendant, as soon as practicable a Schedule of Special Damages with supporting documents. (8.1).

 

Settlement

If the parties reach agreement on liability and/or causation, but time is needed to resolve other issues, including the value of the claim, they should aim to agree a reasonable period. (7.4).

 

Experts

The protocol recognizes that flexibility in relation to expert evidence is required and “does not attempt to be prescriptive on issues in relation to expert evidence”.

The principles are the same as in the Personal Injury protocol dealt with above, although here it is recognized that often the claimant will need to obtain a medical report before sending the letter of claim.  In such cases the defendant will be entitled to obtain its own medical report.  It is accepted that defendants will usually need to see a medical report before they can reach a view on causation.

Paragraph 9 deals with experts and at 9.1 parties are referred to CPR 35 and Practice Direction 35 and the Protocol for the Instruction of Experts to give Evidence in civil Claims annexed to that Practice Direction.

Paragraph 10.3 states that prior to proceedings it will be usual for all parties to disclose those expert reports relating to liability and causation upon which they propose to rely and the claimant should delay issuing proceedings for 21 days from disclosure of those reports to enable the parties to consider whether the claim is capable of settlement (10.4).

 

Part 36

Part 36 applies as in all other personal injury work and is a key rule in the attempt to resolve matters quickly and cheaply.

Please see my comments above in relation to the general Personal Injury Protocol.  The whole issue of Part 36 is dealt with in Part 36: The Dry Salvages.

 

Limitation

The claimant may issue proceedings without complying with the protocol if complying would result in limitation expiring. When issuing proceedings the claimant can apply to the court for directions as to the timetable and form of procedure to be adopted.

The court will consider whether to stay the proceedings pending compliance with this protocol.

 

Annexes

Annex A:             Letter Requesting Occupational Records including Heath Records.

Annex A1:           Application on Behalf of a Potential Claimant for use where a Disease Claim is being investigated.

Annex B:              Template Letter of Claim.

 

Mesothelioma

Annex C is guidance for cases involving mesothelioma and Annex D is a template early notification letter for cases involving mesothelioma.

 

Latest Cases

Track allocation

 In the case of

Bewicke-Copley v Ibeh, Oxford County Court, 1 May 2014

the claim was submitted on to the portal and two heads of loss were agreed within the portal with the remainder being contested.

The Claimant sought to exit the portal and pursue a CPR Part 7 claim with the potential to recover costs that follow from a matter contested on the fast track and the Defendant asked the Court to award the Claimant judgment on the sums it stated had been agreed within stage 2 of the portal process, together with the fixed costs that would have followed from that agreement, and to limit any further costs recoverable by the Part 7 procedure to those that can be recovered in the small claims track.

The judge held that the heads of loss which were accepted in the portal were binding agreements and the remaining heads of loss continue on the small claims track. The judge noted:-

“31.        It defies logic and the aims and intentions of the protocol if at such point, all items that had previously been agreed were regarded as un-agreed.  If that were the case, I would expect the protocol to state this clearly.  It does not.”

Thus the fixed stage 2 portal costs were awarded in relation to the heads of loss that were agreed in stage 2 of the protocol process and the remainder of the claim was allocated to the small claims track.

Track allocation was also addressed in

Akhtar v Boland [2014] EWCA Civ 872

Where the Court of Appeal gave guidance on the relevant considerations in deciding whether a matter should be allocated to the fast track or the small claims track.

The facts of the matter are complicated due to what the court described as an incoherent defence.

However the key point is that if an admission of a clear and certain sum reduces the amount in dispute so as to bring it within the small claims jurisdiction rather than the fast-track jurisdiction, then it should indeed be allocated to the small claims track.

CPR 26.7 and 26.8 provide

“26.7

(1)    In considering whether to allocate a claim to the normal track for that claim under rule 26.6, the court will have regard to the matters mentioned in rule 26.8(1).

(2)    ……

26.8

(1)    When deciding the track for a claim, the maters to which the court shall have regard include –

(a)    the financial value, if any, of the claim;

(b)   ………

(c)    the likely complexity of the facts, law or evidence………

(2)    It is for the court to assess the financial value of a claim and in doing so it will disregard –

(a)    any amount not in dispute;”

This is supported by Practice Direction 26A.

“7.2        The object of this paragraph is to explain what will be the court’s general approach to some of the matters set out in rule 26.8.

 ‘the financial value of the claim’

 7.3

(1)          Rule 26.8(2) provides that it is for the court to assess the financial value of a claim.

(2)          Where the court believes that the amount the claimant is seeking exceeds what he may reasonably be expected to recover it may make an order under rule 26.5(3) directing the claimant to justify the amount.

 ‘any amount not in dispute’

 7.4          In deciding, for the purposes of rule 26.8(2), whether an amount is in dispute the court will apply the following general principles:

(1)          Any amount for which the defendant does not admit liability is in dispute,

(2)          Any sum in respect of an item forming part of the claim for which judgment has been entered (for example a summary judgment) is not in dispute,

(3)          Any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute,

(4)          Any sum offered by the defendant which has been accepted by the claimant in satisfaction of any item which forms a distinct part of the claim is not in dispute.

It follows from these provisions that if, in relation to a claim the value of which is above the small claims track limit of £10,000, the defendant makes, before allocation, an admission that reduces the amount in dispute to a figure below £10,000 (see CPR Part 14), the normal track for the claim will be the small claims track. As to recovery of pre-allocation costs, the claimant can, before allocation, apply for judgment with costs on the amount of the claim that has been admitted (see CPR rule 14.3 but see also paragraph 7.1(3) of Practice Direction 46 under which the court has a discretion to allow pre-allocation costs).”

The Court of Appeal gave helpful guidance as to the correct approach to ambiguous or qualified admissions.

“16.                Where an allegation made by one party in proceedings is admitted by the other party in unqualified terms, that other party must not, seek to adduce evidence or raise arguments to the effect that that admission is not binding on him. The court has no jurisdiction to investigate a fact that has been admitted, unless the party making the admission obtains the permission of the court under CPR 14.1(5) to withdraw the admission and does so.

17.                  This principle applies even more strongly to a judgment for all or part of a claim. Neither party may adduce evidence or make submissions that if accepted would lead to decisions or findings inconsistent with the judgment, unless there is a successful application to set the judgment aside.

18. Where a defendant admits part, and not the whole, of an unliquidated damages claim, the claimant is entitled to judgment on that admission, and to pursue the proceedings to seek and obtain judgment for the balance. Contrary to the claimant’s submission, such a judgment does not extinguish the claimant’s cause of action.

19. Where an admission is equivocal, or inconsistent with other allegations in the defence, the claimant may, and should, seek further information or clarification of the defendant’s case under CPR 18.1. If the claimant fails to do so, and the court considers that it is uncertain what are the issues between the parties that fall to be determined at trial, it may itself make an order for clarification, and in an extreme case, where the defence is truly incoherent, the court may strike it out. On an application such as that heard by DJ Fox, if the court is uncertain as to whether an admission is unqualified, or as to its effect, I would expect the court to seek and to obtain clarification from the defendant at the hearing, and for that clarification to be made or confirmed in writing (under CPR 18.1 or in an amended defence).

20. In the present case, it is clear that DJ Fox interpreted the defence as including an unqualified admission that the claimant was entitled to the sum of £2,496: hence he entered judgment for that sum. We have the transcript of the argument before the Judge, from which it is clear that initially the claimant made no application to set the judgment aside, and that the defendant accepted that at trial the claimant could not recover less than the admitted sums totalling £2,496. It follows that at trial the allegations in the defence that were inconsistent with the admissions in paragraphs 1 to 5 would be disregarded, and could indeed have been struck out. However, in the discussion after judgment, Mr Dawes, for the claimant, accepted that if the allocation of the claim was changed the judgment would have to be set aside.

21. It follows from this that at trial the defendant could not, for example, challenge the entitlement of the claimant to damages for loss of use of his vehicle, or the reasonable need of the claimant to hire a replacement vehicle for a reasonable time and at a reasonable hire charge: for the defendant to do so would be inconsistent with the admission in paragraph 2 (as well as with the judgment). The rate of the hire charge and its duration beyond 21 days would be in issue.”

The 2007 Rehabilitation Code

 Introduction

The aim of this code is to promote the use of rehabilitation and early intervention in the compensation process so that the injured person makes the best and quickest possible medical, social and psychological recovery. This objective applies whatever the severity of the injuries sustained by the claimant. The Code is designed to ensure that the claimant’s need for rehabilitation is assessed and addressed as a priority, and that the process of so doing is pursued on a collaborative basis by the claimant’s lawyer and the compensator.

Therefore, in every case, where rehabilitation is likely to be of benefit, the earliest possible notification to the compensator of the claim and of the need for rehabilitation will be expected.

1         Introduction

1.1    The purpose of the personal injury claims process is to put the individual back into the same position as he or she would have been in, had the accident not occurred, insofar as money can achieve that objective. The purpose of the rehabilitation code is to provide a framework within which the claimant’s health, quality of life and ability to work are restored as far as possible before, or simultaneously with, the process of assessing compensation.

1.2    Although the Code is recognised by the Personal Injury Pre-Action Protocol, its provisions are not mandatory. It is recognised that the aims of the Code can be achieved without strict adherence to the terms of the Code, and therefore it is open to the parties to agree an alternative framework to achieve the early rehabilitation of the claimant.

1.3    However, the Code provides a useful framework within which claimant’s lawyers and the compensator can work together to ensure that the needs of injured claimants are assessed at an early stage.

1.4    In any case where agreement on liability is not reached it is open to the parties to agree that the Code will in any event operate, and the question of delay pending resolution of liability should be balanced with the interests of the injured party. However, unless so agreed, the Code does not apply in the absence of liability or prior to agreement on liability being reached.

1.5    In this code the expression “the compensator” shall include any loss adjuster, solicitor or other person acting on behalf of the compensator.

2         The claimant’s solicitor

2.1    It should be the duty of every claimant’s solicitor to consider, from the earliest practicable stage, and in consultation with the claimant, the claimant’s family, and where appropriate the claimant’s treating physician(s), whether it is likely or possible that early intervention, rehabilitation or medical treatment would improve their present and/or long term physical and mental well being. This duty is ongoing throughout the life of the case but is of most importance in the early stages.

2.2    The claimant’s solicitors will in any event be aware of their responsibilities under section 4 of the Pre-Action Protocol for Personal Injury Claims.

2.3    It shall be the duty of a claimant’s solicitor to consider, with the claimant and/or the claimant’s family, whether there is an immediate need for aids, adaptations, adjustments to employment to enable the claimant to keep his/her existing job, obtain suitable alternative employment with the same employer or retrain for new employment, or other matters that would seek to alleviate problems caused by disability, and then to communicate with the compensators as soon as practicable about any such rehabilitation needs, with a view to putting this Code into effect.

2.4    It shall not be the responsibility of the solicitor to decide on the need for treatment or rehabilitation or to arrange such matters without appropriate medical or professional advice.

2.5    It is the intention of this Code that the claimant’s solicitor will work with the compensator to address these rehabilitation needs and that the assessment and delivery of rehabilitation needs shall be a collaborative process.

2.6    It must be recognised that the compensator will need to receive from the claimants’ solicitors sufficient information for the compensator to make a proper decision about the need for intervention, rehabilitation or treatment. To this extent the claimant’s solicitor must comply with the requirements of the Pre-Action Protocol to provide the compensator with full and adequate details of the injuries sustained by the claimant, the nature and extent of any or any likely continuing disability and any suggestions that may have already have been made concerning the rehabilitation and/or early intervention.

2.7    There is no requirement under the Pre-Action Protocol, or under this code, for the claimant’s solicitor to have obtained a full medical report. It is recognised that many cases will be identified for consideration under this code before medical evidence has actually been commissioned or obtained.

3         The Compensator

3.1    It shall be the duty of the compensator, from the earliest practicable stage in any appropriate case, to consider whether it is likely that the claimant will benefit in the immediate, medium or longer term from further medical treatment, rehabilitation or early intervention. This duty is ongoing throughout the life of the case but is most important in the early stages.

3.2    If the compensator considers that a particular claim might be suitable for intervention, rehabilitation or treatment, the compensator will communicate this to the claimant’s solicitor as soon as practicable.

3.3    On receipt of such communication, the claimant’s solicitor will immediately discuss these issues with the claimant and/or the claimant’s family pursuant to his duty set out above.

3.4    Where a request to consider rehabilitation has been communicated by the claimant’s solicitor to the compensator, it will usually be expected that the compensator will respond to such request within 21 days.

3.5    Nothing in this or any other code of practice shall in any way modify the obligations of the compensator under the Protocol to investigate claims rapidly and in any event within 3 months (except where time is extended by the claimant’s solicitor) from the date of the formal claim letter. It is recognised that, although the rehabilitation assessment can be done even where liability investigations are outstanding, it is essential that such investigations proceed with the appropriate speed.

4         Assessment

4.1    Unless the need for intervention, rehabilitation or treatment has already been identified by medical reports obtained and disclosed by either side, the need for and extent of such intervention, rehabilitation or treatment will be considered by means of an assessment by an appropriately qualified person.

4.2    An assessment of rehabilitation needs may be carried out by any person or organisation suitably qualified, experienced and skilled to carry out the task. The claimant’s solicitor and the compensator should endeavour to agree on the person or organisation to be chosen.

4.3    No solicitor or compensator may insist on the assessment being carried out by a particular person or organisation if [on reasonable grounds] the other party objects, such objection to be raised within 21 days from the date of notification of the suggested assessor.

4.4    The assessment may be carried out by a person or organisation which has a direct business connection with the solicitor or compensator, only if the other party agrees. The solicitor or compensator will be expected to reveal to the other party the existence of and nature of such a business connection.

5         The Assessment Process

5.1    Where possible, the agency to be instructed to provide the assessment should be agreed between the claimant’s solicitor and the compensator. The method of providing instructions to that agency will be agreed between the solicitor and the compensator.

5.2    The assessment agency will be asked to carry out the assessment in a way that is appropriate to the needs of the case and, in a simple case, may include, by prior appointment, a telephone interview but in more serious cases will probably involve a face to face discussion with the claimant. The report will normally cover the following headings:-

  1. The Injuries sustained by the claimant.
  2. The current disability/incapacity arising from those Injuries. Where relevant to the overall picture of the claimant’s needs, any other medical conditions not arising from the accident should also be separately annotated.
  3. The claimant’s domestic circumstances (including mobility accommodation and employment) where relevant.
  4. The injuries/disability in respect of which early intervention or early rehabilitation is suggested.
  5. The type of intervention or treatment envisaged.
  6. The likely cost.
  7. The likely outcome of such intervention or treatment.

5.3    The report should not deal with issues relating to legal liability and should therefore not contain a detailed account of the accident circumstances.

5.4    In most cases it will be expected that the assessment will take place within 14 days from the date of the letter of referral to the assessment agency.

5.5    It must be remembered that the compensator will usually only consider such rehabilitation to deal with the effects of the injuries that have been caused in the relevant accident and will normally not be expected to fund treatment for conditions which do not directly relate to the accident unless the effect of such conditions has been exacerbated by the injuries sustained in the accident.

6         The Assessment Report

6.1    The report agency will, on completion of the report, send copies onto both the claimant’s solicitor and compensator simultaneously. Both parties will have the right to raise questions on the report, disclosing such correspondence to the other party.

6.2    It is recognised that for this assessment report to be of benefit to the parties, it should be prepared and used wholly outside the litigation process. Neither side can therefore, unless they agree in writing, rely on its contents in any subsequent litigation.

6.3    The report, any correspondence related to it and any notes created by the assessing agency to prepare it, will be covered by legal privilege and will not be disclosed in any legal proceedings unless the parties agree. Any notes or documents created in connection with the assessment process will not be disclosed in any litigation, and any person involved in the preparation of the report or involved in the assessment process, shall not be a compellable witness at Court. This principle is also set out in paragraph 4.4 of the Pre-Action Protocol.

6.4    The provision in paragraph 6.3 above as to treating the report etc as outside the litigation process is limited to the assessment report and any notes relating to it. Any notes and reports created during the subsequent case management process will be covered by the usual principle in relation to disclosure of documents and medical records relating to the claimant.

6.5    The compensator will pay for the report within 28 days of receipt.

6.6    This code intends that the parties will continue to work together to ensure that the rehabilitation which has been recommended proceeds smoothly and that any further rehabilitation needs are also assessed.

7         Recommendations

7.1    When the assessment report is disclosed to the compensator, the compensator will be under a duty to consider the recommendations made and the extent to which funds will be made available to implement all or some of the recommendations. The compensator will not be required to pay for intervention treatment that is unreasonable in nature, content or cost or where adequate and timely provision is otherwise available. The claimant will be under no obligation to undergo intervention, medical or investigation treatment that is unreasonable in all the circumstances of the case.

7.2    The compensator will normally be expected to respond to the claimant’s solicitor within 21 days from the date upon which the assessment report is disclosed as to the extent to which the recommendations have been accepted and rehabilitation treatment would be funded and will be expected to justify, within that same timescale, any refusal to meet the cost of recommended rehabilitation.

7.3    If funds are provided by the compensator to the claimant to enable specific intervention, rehabilitation or treatment to occur, the compensator warrants that they will not, in any legal proceedings connected with the claim, dispute the reasonableness of that treatment, nor the agreed costs, provided of course that the claimant has had the recommended treatment. The compensator will not, should the claim fail or be later discontinued, or any element of contributory negligence be assessed or agreed, seek to recover from the claimant any funds that they have made available pursuant to this Code.

The Rehabilitation Code is endorsed by many organisations, including:

Association of British Insurers

Association of Personal Injury Lawyers

Bodily Injury Claims Management Association

Case Management Society of the UK

Forum of Insurance Lawyers

International Underwriting Association

Motor Accident Solicitors’ Society

To download the code, go to www.iua.co.uk/rehabilitationcode

 

© Reproduced by kind permission of LexisNexis. This material appears in Butterworth’s Personal Injury Litigation Service

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Written by kerryunderwood

January 30, 2014 at 9:17 am

Posted in Uncategorized

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