Keeping The Woolf From Your Door - Part 4

Pre-Action Protocols
These are guidelines on steps which must be taken before a case is started in the courts. Protocols are also known as "Practice Directions" and they are designed to promote a "cards on the table" approach.

There are two protocols.
The first is for personal injury and the second is for clinical negligence. All other types of claims should "enter in to the spirit" of the two protocols, which means they should follow the suggested guidelines where possible.

Personal Injury Protocol
This states that prior to the issue of proceedings a letter before action ("Letter of Claim") must be written to the Defendant including a copy of that letter for the Defendant to forward to his/her insurers. The letter must give a clear summary of the facts, the nature of the injury and the financial loss incurred.

There is a standard format provided in the protocols for how to set out a letter before action. The Defendant must reply within 21 days to that letter and if no response is received then there will be no sanction against the Claimant for proceeding.

If the Defendant does respond then he has three months (including the 21 days) to investigate the claim and at the end of that period must say whether liability is denied and if so why.

If the Defendant admits liability then they will be bound by their admissions for any claim up to £15,000. If they deny liability the Defendant must make voluntary disclosure of documents to support his position.

The protocols set out the classes of documents which should be disclosed between the parties to comply with "Standard Disclosure".

Before instructing any experts the parties must give each other a list of one or more experts in the area of speciality that they want to use. The other side must raise objections within 14 days with reasons. Either party can send written questions to the other's expert.

Clinical Disputes Protocols
The protocol sets out objectives for patients and their advisors and Health Trusts and their advisors to promote "good practise", "openness" and "timeliness".

There is the same requirement that prior to issue of proceedings a letter before action, ("Letter of Claim") must be written.

However, this time the Defendant has only 14 days in which to respond. If they respond within those 14 days then they have 3 months in which to investigate the claim, the Claimant cannot start proceedings until after those 3 months.

Also the Protocols set out standard forms for requesting medical records. They also set out classes of documents which each party must send to the other as part of standard disclosure.

High Court Limit
Claims can no longer be issued in the High Court unless the value of the claim is over £15,000 (except personal injury cases where the value must be over £50,000). Therefore the majority of claims under £15,000 will be dealt with in the County Court.

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