You may have been told by your Solicitor that he or she is preparing to make a pre-action disclosure application (or PAD for short). This is basically an application to Court to request that the Court makes an Order to force the other party to disclose relevant documentation in accordance with the claim. Relevant documentation could include insurance details, works medical records, risk assessments, accident book entries etc. The relevant documentation will depend on the nature of the claim. Without such documentation it could be difficult for your Solicitor to assess your claim or the prospects of success in your claim. The documentation could be crucial in determining liability.
The application will usually result in a formal hearing at a County Court. You normally do not need to attend the hearing and we often instruct a Barrister to attend the hearing on our behalf. The hearing would usually last between 10 and 15 minutes. We prepare the application and produce a “draft order” which sets out the documentation that we believe should be disclosed. We also prepare a Statement setting out the correspondence between the parties to show that we have reasonably tried to get the information from the Defendant without the need for court action.
If the Defendant does not have the documentation then their duty is to say that they do not have it and why. For example did they ever have the documentation, was it destroyed and why etc. If a Defendant has no documentation then this is likely to prejudice any defence to the claim. A pre-action disclosure application is extremely useful in forcing the Defendant to respond to the claim. If the Defendant does not comply with a Court Order then the Claimant can apply to the Court for a penal notice to be endorsed upon the Order. This is another financial implication imposed upon the Defendant as punishment for failing to comply with a Court Order. In truth I have rarely had to make an application for a penal notice. It is amazing how companies and Defendant’s fail to respond but when they receive a Court Order they suddenly start dealing with the claim, disclosing documentation, referring the matter to their insurers etc. After all it is in their interest and everyone’s interest to deal with the claim amicably.
If a Defendant is not responding to letters or correspondence then we can make a PAD application as a way of preventing unnecessary delays for your claim. It is prudent to give the Defendant notice that should they fail to respond in a certain time frame, an application will be made. We also need to comply with the time limits specified under the relevant pre-action protocol. We often submit letters which state something along the lines of:
“Unfortunately we have not received a response either form you or from your insurers further to our protocol letter of claim dated the 1st September 2012. The protocol period has now expired. The Claimant has not received a liability decision or disclosure in accordance with the protocol. We look forward to hearing from you within the next 14 days after which we will have no alternative but to issue an application for pre-action disclosure. We trust that the expense of a formal application can be avoided.”
The above is just an example and the main point is that a PAD application must be justified. We must have given ample time and notice that we intend to make the application. An application made prematurely could be struck out by a Court. The Statement sent as part of the application notes all correspondence between the parties. This is in order to justify the application and to show that the Defendant has not responded to our correspondence, not disclosed documentation in accordance with the protocol etc.
A PAD application is not a quick fix as it can take time. For example once the application is made the Court will give a hearing date which could be in a month or so, for example. However in cases where the Defendant is not responding or is not providing the documentation that we have requested, an application to the Court is extremely useful.
Although you do not need to know all the details of a PAD application, it is important in terms of understanding why an application is being made in your case. Essentially, a PAD application is made to force disclosure of relevant documentation. This documentation is essential in considering the issue of liability.
