What the Protocol aims to Achieve
The Protocol goes into detail about what the court would expect the parties to do before the need to commence court proceedings. The Protocol ensures that the damages for easily resolvable claims are paid within a reasonable time. This avoids a lengthy waiting time to be compensated.
The Stages of the Process
There are three stages in the process of the Pre-action Protocol which are outlined below.
Stage 1
The claimant must complete a claim notification form (or “CNF” to those in the know) and send one copy to the defendant’s insurer, and a “defendant only CNF” to the defendant through an electronic portal system. These must be sent at the same time or as little time as possible between sending one and the other. Once received, acknowledgment must be sent by the defendant and insurer to the claimant’s solicitor. If an address in the online portal isn’t given, then it must be sent by first class post.
If the essential information on the CNF has not been completed, the defendant may decide not to continue using the Protocol. If the defendant does not admit liability at this point, admits liability but also outlines that the injured party is partly to blame, does not complete or respond to the CNF, or believes that there is not enough essential information completed on the CNF, the claim will no longer proceed under the Protocol.
If liability is accepted in full, the defendant will usually pay costs to the claimant’s solicitor, and the claim will proceed to stage 2.
Stage 2
The claimant should obtain a medical report to value the claim. Any medical records or photographs should be submitted with the medical report. Non-medical reports and witness statements may also be submitted if they help to value the claim. If it is an EL claim, the defendant gives the loss of earning details within 20 days of the admission.
An interim payment of £1,000 may be requested at this point in relation to general damages, and more may be requested if it relates to the injury (also known as pecuniary losses). It is thought that this will make the defendant think about offering a settlement.
At this point, the defendant has 35 working days to consider the claim – 15 of which should be used to consider the stage 2 information, and the rest of the time is to negotiate. If a settlement is not reached, stage 3 is pursued.
Stage 3
The court proceedings pack is completed and sent to the defendant and the claimant will then issue the claim to court. The judge in court will look at the information and reach a final figure to award.