It is important to contact the Defendant before you bring a claim. There is a protocol in place for personal injury claims known as the ‘pre-action’ protocol which seeks to encourage early settlement of disputes to the satisfaction of both parties. The aim of the pre-action protocol is to encourage more contact between the parties before a claim is issued, to promote better and earlier exchange of information and better pre-action investigation by both sides, and to put the parties in a position where they may be able to settle cases fairly and early without litigation. The idea of the pre-action protocol is that the parties should put their ‘cards on the table’ as early as possible. Any failure to comply with the pre-action protocol, for example by failing without reason to give the Defendant any advance notification of a possible claim, may lead to a sanction being imposed by the court, for example in the form of a costs penalty.
In general, the protocol works in the following way. The Defendant could be given early notification as soon as it is likely that a claim will be made, but should at least be sent a ‘letter of claim’ containing a clear summary of the facts on which the claim is based together with an indication of the nature of any injuries suffered and of any financial loss incurred. Sufficient information should be given in order to enable the Defendant to commence investigations and at least put a broad valuation on its potential ‘risk’. The Defendant should acknowledge the letter of claim within 21 days and should complete its investigations and state whether liability is admitted or denied within 3 months thereafter. If the Defendant admits liability, this will only leave the issue of valuing the claim. If the Defendant denies liability, the Defendant should enclose documents in its possession which are material to the issues between the parties. This could narrow the issues of dispute before proceedings are issued. Even if the parties cannot reach a settlement, it is a good idea for them to at least try to agree what the issues are between them, as this may well mean that any subsequent legal proceedings are more focused and less costly to the parties.
For advice on the pre-action protocol and what else should or could be done before a claim is issued, please contact a local solicitor in our directory.