> ### PRE-ACTION PROTOCOL FOR PERSONAL INJURY CLAIMS

> ### THE PROTOCOL

> ### LETTER OF CLAIM

> 3.1 | The claimant shall send to the proposed defendant two copies of a letter of claim, immediately sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail. One copy of the letter is for the defendants, the second for passing on to his insurers.
> 3.2 | The letter shall contain 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. In cases of road traffic accidents, the letter should provide the name and address of the hospital where treatment has been obtained and the claimant's hospital reference number.
> 3.3 | Solicitors are recommended to use a standard format for such a letter - an example is at Annex A: this can be amended to suit the particular case.
> 3.4 | The letter should ask for details of the insurer and that a copy should be sent by the proposed defendant to the insurer where appropriate. If the insurer is known, a copy shall be sent directly to the insurer. Details of the claimant's National Insurance number and date of birth should be supplied to the defendant's insurer once the Defendant has responded to the letter of claim and confirmed the identity of the insurer. This information should not be supplied in the letter of claim.
> 3.5 | 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'.
> 3.6 | The defendant should reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any). If there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings.
> 3.7 | The defendant ('s insurers) will have a maximum of three months from the date of acknowledgment of the claim to investigate. No later than the end of that period the defendant (insurer) shall reply, stating whether liability is denied and, if so, giving reasons for their denial of liability.
> 3.8 | Where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the time periods of 21 days and three months should normally be extended up to 42 days and six months.
> 3.9 | Where liability is admitted, the presumption is that the defendant will be bound by this admission for all claims with a total value of up to £15,000.

> ### DOCUMENTS

> 3.10 | If the defendant denies liability, he should enclose with the 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.
> 3.11 | Attached at Annex B are specimen, but non-exhaustive, lists of documents likely to be material in different types of claim. Where the claimant's investigation of the case is well advanced, the letter of claim could indicate which classes of documents are considered relevant for early disclosure. Alternatively these could be identified at a later stage.
> 3.12 | Where the defendant admits primary liability, but alleges contributory negligence by the claimant, the defendant should give reasons supporting those allegations and disclose those documents from Annex B which are relevant to the issues in dispute. The claimant should respond to the allegations of contributory negligence before proceedings are issued.

> ### SPECIAL DAMAGES

> 3.13 | The claimant will send to the defendant as soon as practicable a Schedule of Special Damages with supporting documents , particularly where the defendant has admitted liability.

> ### EXPERTS

> 3.14 | Before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he considers are suitable to instruct.
> 3.15 | Where a medical expert is to be instructed the claimant's solicitor will organise access to relevant medical records - see specimen letter of instruction at Annex C.
> 3.16 | Within 14 days the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert. It must be emphasised that if the Claimant nominates an expert in the original letter of claim, the Defendant has 14 days to object to one or more of the named experts after expiration of the period of 21 days within which he has to reply to the letter of claim, as set out in paragraph 3.6.
> 3.17 | If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently if proceedings are issued, whether either party had acted unreasonably.
> 3.18 | If the second party does not object to an expert nominated, he shall not be entitled to rely on his own expert evidence within that particular speciality unless: the first party agrees the court so directs, or the first party's expert report has been amended and the first party is not prepared to disclose the original report.
> 3.19 | Either party may send to an agreed expert written questions on the report, relevant to the issues, via the first party's solicitors. The expert should send answers to the questions separately and directly to each party.
> 3.20 | The cost of a report from an agreed expert will usually be paid by the instructing first party: the costs of the expert replying to questions will usually be borne by the party which asks the questions.
> 3.21 | Where the defendant admits liability in whole or in part, before proceedings are issued, any medical report obtained by agreement under this protocol should be disclosed to the other party. The claimant should delay issuing proceedings for 21 days from disclosure of the report, to enable the parties to consider whether the claim is capable of settlement. The Civil Procedure Rules Part 36 permit claimants and defendants to make offers to settle pre-proceedings. Parties should always consider before issuing if it is appropriate to make Part 36 Offer. If such an offer is made, the party making the offer must always supply sufficient evidence and/or information to enable the offer to be properly considered.

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