Expert Study Notes: Pre-Action Conduct and the Personal Injury Protocol

Pre-Action Conduct and Protocol Applicability

• Core Rule on Regime Selection: The primary determination is whether a specific approved pre-action protocol governs the category of claim. If a specific protocol exists, it must be followed. The general Practice Direction (PD) on Pre-Action Conduct and Protocols applies only where no specific approved protocol is relevant.

• Specific Protocols vs. General PD: Parties must not substitute the general PD for a specific protocol (e.g., the Personal Injury Protocol) simply because the PD procedure seems easier. Protocols are annexed to the Civil Procedure Rules (CPR) and approved by the Master of the Rolls.

• Contempt of Court: A person who knowingly makes a false statement in a pre-action protocol letter or any document prepared in anticipation of proceedings may face contempt proceedings.

• Example Scenario: For an ordinary commercial debt claim without a specific protocol, the general PD applies. Conversely, a fast-track personal injury claim is governed strictly by the Personal Injury Protocol.

Objectives, Proportionality, and the Spirit of Pre-Action Conduct

• Fundamental Objectives (Paragraph 3 / C1-002): Before proceedings are issued, parties must exchange sufficient information to:

  • Understand each other’s position.

  • Make informed decisions regarding how to proceed.

  • Attempt to settle the issues without litigation.

  • Consider appropriate forms of Alternative Dispute Resolution ($ADR$).

  • Support efficient management of proceedings should they become necessary.

  • Reduce the overall costs of resolving the dispute.

• Proportionality (Paragraphs 4-5 / C1-003): Pre-action steps and their associated costs must be reasonable and proportionate. The process is not to be used as a tactical disclosure weapon or to impose unfair financial burdens on an opponent. The intensity of compliance is scaled based on the value, complexity, and urgency of the claim.

• Small Claims: These require a lighter, common-sense level of compliance. Unreasonable conduct can still attract costs consequences even on the small claims track.

• The "Substantial Compliance" Principle (White Book C1A-005): The court looks for compliance in substance and spirit rather than exact technical perfection. This is governed by the principles in $ADD2\,Research\,and\,Development\,v\,DSpace$.

Standard Procedure Under the General Practice Direction

• Claimant’s Concise Letter: This must state the legal basis for the claim, concise facts, the remedy sought, and a calculation for money claims.

• Defendant’s Reasoned Response: A response must be provided within a reasonable timeframe. The guidelines suggest:

  • Straightforward cases: approximately $14$ days.

  • Very complex cases: maximum of $3$ months.

• Content of Response: If the claim is disputed, the defendant must provide reasons, identify disputed facts, and detail any counterclaims. They must also provide key documents needed to understand the dispute.

• Flexibility: Parties are permitted to agree upon a different reasonable investigation period if justified by the circumstances.

• Expert Evidence (Paragraph 7 / C1-005): Expert evidence should only be obtained if reasonably necessary and proportionate. Parties should discuss the need for experts and the appropriate discipline. In low-value claims, a single jointly instructed expert should be considered. Note that pre-action reports do not guarantee court permission for reliance or cost recovery later under CPR Part $35$.

Settlement, ADR, and Protective Issue for Limitation

• Litigation as a Last Resort: Parties must consider negotiation or $ADR$ (e.g., mediation, arbitration, early neutral evaluation, ombudsman schemes) before issuing proceedings. A Part $36$ offer can be made before proceedings are issued.

• $ADR$ Silence: Silence in response to an $ADR$ invitation or an unreasonable refusal to participate may be treated as unreasonable conduct, leading to costs sanctions.

• The Stocktake (Paragraph 12 / C1-007): Immediately before issue, parties should review their positions to see if proceedings can be avoided or the issues narrowed. They should distinguish between what is agreed and what is genuinely disputed.

• Limitation (Paragraph 17 / C1-009): Pre-action rules do not extend or suspend statutory limitation periods. If limitation is imminent/expiry is close:

  • Comply with the protocol as far as reasonably possible.

  • Issue proceedings within the limitation period to protect the claim ("protective issue").

  • Seek a stay after issue to complete the outstanding pre-action steps.

• Example Scenario: If a claim is advised on $25$ September and limitation expires on $1$ October, the claimant should issue immediately and then seek a stay.

Personal Injury Protocol: Scope and Notification

• Scope (Paragraph 1.1): Primarily designed for PI claims likely to be allocated to the fast track (working value up to $£25,000$), but the principles apply to higher-value claims. It does not apply where a more specific protocol exists (e.g., Clinical Negligence, Disease, or the specific Low-Value RTA/EL/PL protocols).

• Letter of Notification (Paragraph 3.1-3.3): Provides early warning before a full Letter of Claim can be sent. It is useful for cases requiring early rehabilitation or interim payments.

  • Deadline: Must be acknowledged within $14$ days of receipt.

  • Timeline Note: It does not start the clock for the formal Letter of Response.

• Rehabilitation: The PI protocol emphasizes early medical/rehabilitation treatment alongside liability investigation.

Personal Injury Protocol: Letter of Claim and Response Timetables

• The Letter of Claim (Paragraph 5.1-5.7): Requires two copies: one for the defendant and one for their insurer. The defendant must pass the copy to the insurer within $7$ days.

• Information Requirements: Must include facts, injury details (impact on functioning/prognosis), and financial losses. Do not include the National Insurance ($NI$) number or date of birth in the initial Letter of Claim; these are provided after the insurer is identified.

• The Investigation Timetable (Paragraph 6.1-6.7):

  • Acknowledgment/Insurer Identification: Within $21$ calendar days from the date of posting.

  • Substantive Response (The Investigation Period): A maximum of $3$ months from the date of acknowledgment.

  • Foreign Elements: The periods extend to $42$ days (acknowledgment) and $6$ months (investigation) if the accident was outside England and Wales or the defendant is outside the jurisdiction.

• Admissions: A formal protocol admission may be binding under CPR $14.1A$. A full admission involves admitting the accident occurred, was caused by a breach of duty, the claimant suffered loss, and there is no limitation defence.

PI Protocol: Experts, Disclosure, and Post-Admission Conduct

• Disclosure (Paragraph 7.1.1-7.1.4): Disclosure should be targeted and relevant. Parties must preserve evidence, including CCTV; destruction may be an abuse of process.

• Expert Selection (Paragraph 7.2-7.8): The protocol encourages co-operation to avoid competing reports. The claimant provides a list of suitable names. The defendant has $14$ days to object. If the names are in the Letter of Claim, the defendant has $14$ days to object after the initial $21$-day acknowledgment period.

• Status of Expert: A protocol "agreed expert" is not automatically a CPR Part $35$ "single joint expert."

• Clarification Questions (Paragraph 7.9-7.11): Written questions for the expert must be sent via the first party's solicitor within $28$ days of service of the report.

• Post-Admission Negotiations (Paragraph 8.1-8.2): If liability is admitted, the claimant must provide medical reports and a schedule of losses (even if provisional).

  • The Settlement Pause: The claimant should delay issuing proceedings for $21$ days after disclosing this evidence to allow for settlement discussions (unless limitation is imminent).

• Solicitor Nomination: At the stocktake stage, the claimant should invite the insurer to nominate solicitors to accept service $7$ to $14$ days before intended issue.

Consequences of Non-Compliance

• Assessment Criteria (Paragraphs 13-14): The court considers whether failures were technical or material, the reasons for failure, and the effect on costs and settlement.

• Court Orders (Paragraph 15): The court can stay proceedings to allow compliance, excuse further compliance, or give directions to "cure" the procedural position.

• Specific Sanctions (Paragraph 16):

  • Costs: Payment of part or all of another party’s costs, potentially on the indemnity basis.

  • Claimant Interest: Depriving a successful claimant of interest for a period or awarding a lower rate.

  • Defendant Interest: If the defendant is at fault, the court may award the claimant a higher interest rate on damages (up to $10\%$ above base rate).

• $ADR$ and the Court’s Power: Under $Churchill$, the court can order $ADR$ if it is proportionate and preserves the essence of access to a judicial hearing. An unreasonable refusal to engage in $ADR$ is a form of non-compliance affecting costs ($Halsey$ principles).

Deadline and Protocol Master Table

• General PD Simple Response: $14$ days.

• General PD Complex Response: $3$ months.

• PI Letter of Notification Acknowledge: $14$ days.

• Forward Letter of Claim to Insurer: $7$ days.

• PI Acknowledgment/Insurer ID: $21$ calendar days.

• PI Investigation Period: $3$ months max (from acknowledgment).

• Foreign PI Acknowledgment: $42$ days.

• Foreign PI Investigation: $6$ months.

• Object to Proposed Expert: $14$ days.

• Settlement Pause after Admission: $21$ days.

• Expert Clarification Questions: $28$ days.

• Invite Solicitor Nomination: $7$-$14$ days before issue.

• Claimant Post-Response Silence: Notify defendant if delay will exceed $6$ months.

Case Law Cues and Strategic Principles

• $ADD2\,Research\,and\,Development\,v\,DSpace$: Focus on substantive compliance and proportionality.

• $Carlson\,v\,Townsend$: Medical reports may remain privileged if the expert's identity was not revealed or the report was not disclosed pre-action.

• $Cundall\,Johnson\,v\,Whipps\,Cross$: Proceedings stayed because the claimant failed to provide an adequate claim letter defining the contractual basis.

• $Orange\,PCS\,v\,Hoare\,Lea$: Stay refused because "slavish" protocol adherence would be counter-productive to the overriding objective.

• $Nelson’s\,Yard\,v\,Eziefula$: Unreasonable pre-action failure to respond resulted in adverse costs even after the claim was discontinued.

• Final Decision Sequence: 1. Identify Protocol -> 2. Check Limitation -> 3. Send Claim -> 4. Obtain Response -> 5. Evaluate Experts -> 6. Engage in $ADR$ -> 7. Stocktake -> 8. Issue.