An Outline Of The Pre-Action Protocol

The Pre-action Protocol is a set of steps the court normally requires both parties to take before starting proceedings for certain types of civil claims. It creates a structure of conduct and provides a rough timeframe for both parties to follow. The Pre-action Protocol is detailed and varies depending on the exact nature of the legal action. For example, the Pre-action Protocol for medical negligence cases differs from that for personal injury claims. Additionally, low-value claims might be filed in an alternative manner.

The objectives of the Pre-Action Protocol are to help both sides understand each other’s position. This can help to settle the claim without the need to go to court. It also aims to reduce the expense of resolving the dispute. For personal injury claims, typically, the Pre-action Protocol are as follows:

  • Letter of Notification: This letter informs the third party (defendant) that you intend to launch a personal injury claim against them.
  • Rehabilitation: As a matter of priority, the need for medical treatment or rehabilitation for the claimant is assessed.
  • Letter of Claim: This letter to the defendant provides an overview of the circumstances on which the claim is based, along with details of the injuries sustained in the incident and financial losses incurred by these injuries. It is the formal notification that a claim is being filed. 
  • The Response: The defendant then has 21 calendar days to reply to the letter of claim. After acknowledging receipt, the defendant has 3 months from the date of the acknowledgement of the Letter of Claim to carry out any investigations into the merits and circumstances of the case. 
  • Disclosure: Any other relevant information is exchanged between the two parties.
  • Experts: Both parties can instruct relevant experts to provide testimony. For example, the claimant may attend an independent medical exam so a full understanding of their injuries and the prognosis can be considered. 
  • Negotiations: Should the defendant admit liability, a part 36 offer to settle can be put forward during negotiations. This is an opportunity for the claimant to agree on a compensation settlement if they choose to.
  • Alternative Dispute Resolution: If one or both parties cannot agree, mediation or arbitration is used to try and resolve the issue.
  • Stocktake and list of issues: Should this fail, both sides should re-assess their position and strength of argument. If legal proceedings need to be initiated, both sides should at least narrow the disputed issues as much as possible. 
  • A three-year time limit to start a personal injury claim must be observed, but some exceptions apply.

If a dispute goes to litigation, the court will expect both parties to have followed the steps outlined in the Pre-action Protocol. The court will take any non-compliance into account when reaching a decision.

A yellow book with the words personal injury claims printed on it standing on a desk.

If you choose to appoint a solicitor to your personal injury case, they will carry out the pre-action protocol steps for you. Solicitors on our panel could step in and handle everything, so call to see if your claim qualifies.

In addition to our legal glossary, you might find the resources below helpful: